Understanding the Problem
The question is how someone in North Carolina can make a will “self-proving” so that the clerk of superior court can accept it more easily in a future probate case. This commonly arises when someone is signing a new will and wants to reduce difficulties for family members later. The concerns include who may act as a witness, whether a second witness may be younger than the first, and what signing steps must occur before an authorized officer.
Apply the Law
North Carolina law requires an attested will to be validly executed and permits that will to be made self-proving either during the original signing ceremony or afterward. Self-proving does not replace the requirements for a valid will; it supplies sworn proof of proper execution for the later probate proceeding.
Key Requirements
- Valid attested written will: The will must be in writing, signed by the testator or by someone acting at the testator’s direction and in the testator’s presence, and attested by at least two competent witnesses. The witnesses must sign in the testator’s presence, although they need not sign in each other’s presence, as required by North Carolina law on attested written wills.
- Competent witnesses: Each witness must be generally competent to testify in North Carolina. The statute does not create a different minimum age or competency standard for the second witness; both witnesses must satisfy the same rule.
- Acknowledgment, affidavits, and certificate: The testator must acknowledge the will, the witnesses must make the required sworn statements, and the authorized officer must complete a certificate under official seal. The statutory form or a similar form showing the same intent may be used.
What the Statutes Say
- N.C. Gen. Stat. § 31-3.1 states that a will is not valid unless it complies with the requirements of Chapter 31.
- N.C. Gen. Stat. § 31-3.3 defines how an attested written will must be signed and witnessed.
- N.C. Gen. Stat. § 31-8.1 provides that anyone generally competent to be a witness in North Carolina may witness a will.
- N.C. Gen. Stat. § 31-11.6 explains how a will may be made self-proving during execution or how an attested written will may be made self-proving later.
- N.C. Gen. Stat. § 28A-2A-8 permits an attested written will to be probated upon a showing that it was made self-proved under N.C. Gen. Stat. § 31-11.6.
Analysis
A person preparing a North Carolina attested will needs at least two competent witnesses, and there is no looser standard for the second witness. The most direct approach is for the testator and both witnesses to complete the will and self-proving form during one ceremony before an officer authorized to administer oaths where the signing occurs. If the will was already executed properly, it may still be made self-proving later through the testator’s acknowledgment and the attesting witnesses’ affidavits before an officer authorized to administer oaths under North Carolina law.
Process & Timing
- Prepare an attested written will and a self-proving form that follows N.C. Gen. Stat. § 31-11.6 or uses similar language showing the same intent.
- Have the testator and at least two competent witnesses complete the execution requirements. They may also complete the acknowledgment and affidavits before the authorized officer during that ceremony.
- If the will was signed previously, arrange for the testator and the original attesting witnesses to appear before an officer authorized to administer oaths under North Carolina law and complete the later self-proving certificate.
- After the testator’s death, the original will is offered for probate before the clerk of superior court in the proper county, generally the county where the decedent was domiciled at death. A compliant self-proving certificate ordinarily eliminates the need for additional testimony from the subscribing witnesses.
North Carolina law does not impose a separate deadline for adding a self-proving certificate to a qualifying attested will, but doing so later requires the testator and attesting witnesses to be available. Completing it when the will is executed reduces the risk that a necessary person cannot participate later.
Exceptions & Pitfalls
- A self-proving certificate does not cure a will that failed to satisfy the underlying execution requirements.
- Both attesting witnesses must meet North Carolina’s general competency standard. Age alone should not be treated as a separate statutory disqualification, but a proposed witness must be competent to serve.
- Missing signatures, failure to administer the required oaths, lack of an official seal, or language that does not show the required intent may prevent the will from qualifying as self-proved.
- An out-of-state will may be treated as self-proved when it is recognized as valid and is shown to have been made self-proved under the law of a qualifying jurisdiction identified in N.C. Gen. Stat. § 31-11.6. Do not assume every out-of-state form automatically meets that rule.
Conclusion
A North Carolina attested will becomes self-proving when the validly executed will includes the testator’s acknowledgment, the attesting witnesses’ sworn statements, and an authorized officer’s properly sealed certificate in the statutory or a similar form. At least two competent witnesses must satisfy the same witnessing standard. Because later completion requires the testator and original witnesses to remain available, the practical next step is to arrange one supervised ceremony in which the will and self-proving certificate are completed together.
Talk to an Estate Planning Attorney
If you are preparing a North Carolina will and want it to be self-proving, call 919-341-7055 to request a free case evaluation and discuss the witness rules and required certificate.
