Understanding the Problem
The narrow question is whether North Carolina requires a notary, in addition to witnesses, to make a will legally valid. A related concern is whether a will fails because a witness was not qualified or was named as a beneficiary. For a standard typed will, notarization and valid execution are separate issues: witnesses are required for execution, while notarization generally concerns the optional self-proving procedure used to make probate easier.
Apply the Law
Key Requirements
- Written and signed: The will must be in writing and signed by the testator, or by another person in the testator’s presence and at the testator’s direction.
- At least two competent witnesses: Each witness must be competent to act as a witness generally in North Carolina.
- Proper acknowledgment and attestation: The testator must sign in the witnesses’ presence or acknowledge a previously affixed signature. Each witness must sign in the testator’s presence, although the witnesses do not have to sign in each other’s presence.
- Optional self-proving procedure: The testator and witnesses may make sworn statements before a notary or another authorized officer so the will can later be probated without additional witness testimony.
What the Statutes Say
- N.C. Gen. Stat. § 31-3.3 defines an attested written will and sets out the signing, acknowledgment, and witness requirements.
- N.C. Gen. Stat. § 31-8.1 provides that any person competent to be a witness generally in North Carolina may witness a will.
- N.C. Gen. Stat. § 31-10 provides that a beneficiary may be a competent witness, but the beneficiary’s interest may be void unless the will has at least two other disinterested witnesses.
- N.C. Gen. Stat. § 31-11.6 explains how an attested will may be made self-proved when the testator and witnesses make the required acknowledgment and affidavits before an authorized officer.
- N.C. Gen. Stat. § 28A-2A-8 sets out the methods for proving an attested written will, including proof through witness testimony or a showing that the will was made self-proved.
Analysis
For a North Carolina typed will, the central requirements are a proper signature and attestation by at least two competent witnesses. Because notarization is not included among the execution requirements in § 31-3.3, the absence of a notary does not by itself invalidate the will. The notary’s role is ordinarily to administer the acknowledgments and affidavits used to make the will self-proved under § 31-11.6.
Process & Timing
- At execution, the testator signs the will in the witnesses’ presence or acknowledges a signature already placed on the will.
- At least two competent witnesses sign the will in the testator’s presence. They do not have to sign in each other’s presence.
- The will may be made self-proved at execution or later through the procedure in § 31-11.6. A later self-proving affidavit supplies probate evidence; it does not replace or cure missing execution requirements.
- After the testator’s death, the original will is offered for probate before the clerk of superior court. Under § 28A-2A-8, a self-proved will may be admitted without additional witness testimony. If the will is not self-proved and both attesting witnesses are available, testimony from at least two attesting witnesses is ordinarily required; the statute provides other proof methods when witness testimony is unavailable.
Exceptions & Pitfalls
- North Carolina also recognizes holographic wills that satisfy separate requirements. Those wills do not require attesting witnesses, but they are outside the standard typed-will rules discussed here.
- A person named as a beneficiary may be competent to witness the will. However, under § 31-10, that witness’s gift may be void if there are not at least two other disinterested witnesses.
- Using a person who is not competent to act as a witness generally can create a dispute over whether the will had the required two competent witnesses.
- A witness’s failure to sign in the testator’s presence can make the will improperly executed under § 31-3.3.
- Without a self-proving affidavit, the estate may need witness testimony or other statutory proof. Locating witnesses years later can add time and difficulty to probate.
Conclusion
A North Carolina typed will does not need notarization to be valid, but it must be properly signed and attested by at least two competent witnesses. The testator must sign before the witnesses or acknowledge an existing signature, and each witness must sign in the testator’s presence. A notary is useful for making the will self-proved, which simplifies probate. The next step is to arrange a signing that satisfies § 31-3.3 and, when practical, complete the self-proving procedure.
Talk to an Estate Planning Attorney
If you have questions about witnesses, notarization, or self-proving affidavits for a North Carolina will, call 919-341-7055 to request a free case evaluation with our estate planning attorneys.
