Short Answer

In North Carolina, “mutual wills” usually means two separate wills with matching terms. Unless those wills (or a separate written agreement) clearly say they are a binding contract, either spouse can change their will at any time. By contrast, ordinary separate wills are fully revocable. If you want the survivor to be legally bound to leave assets to the children later, North Carolina law requires clear contractual language and proper formalities.

Understanding the Problem

You’re asking whether, in North Carolina, a couple can use mutual wills so the survivor receives everything and, after both die, the assets go to the children—and how that differs from simply signing separate wills. You also need to handle this through a remote consultation and coordinated signing because you live outside the firm’s county.

Apply the Law

Under North Carolina law, a will is valid if the testator signs it in the presence of two witnesses who also sign in the testator’s presence. A notary is not required for validity, but a self-proving affidavit (signed before a notary or authorized officer) makes probate easier. “Mutual wills” are just separate wills with reciprocal terms unless they also form a contract to make (or not revoke) a will; without clear contractual language, either spouse may change their will later. Probate happens before the Clerk of Superior Court, and the named executor should present the will within 60 days after death.

Key Requirements

• Proper execution: Each will must be signed by the testator and attested by two competent witnesses in the testator’s presence.
• Self-proving option: Not required for validity, but a notarized self-proving affidavit lets the will be probated without locating witnesses.
• Mutual vs. mirror vs. contract: Matching (mirror) wills are revocable; to bind the survivor, there must be clear contract language in the wills or a separate written agreement.
• Binding effect after first death: When there is a valid contract and the survivor accepts the first spouse’s bequest, the survivor is obligated to follow the agreed plan at their later death.
• Out-of-state documents: A will executed under the law of another state may be valid in North Carolina; self-proving from another state can carry over if it met that state’s law.
• Forum and timing: Probate occurs with the Clerk of Superior Court; the named executor should present the will within 60 days of death.

What the Statutes Say

• North Carolina Gen. Stat. § 31-3.3 (Execution of attested wills) – Two witnesses must sign in the testator’s presence; testator must sign or acknowledge signature.
• North Carolina Gen. Stat. § 31-11.6 (Self-proved wills) – Allows a notarized affidavit so witnesses need not testify at probate.
• North Carolina Gen. Stat. § 52-10 (Contracts between spouses) – Spouses may make written, acknowledged agreements; relevant for contracts to make/not revoke wills.
• North Carolina Gen. Stat. § 31-46 (Validity of out-of-state wills) – Recognizes wills valid where executed or where the testator was domiciled.

Analysis

Apply the Rule to the Facts: If you and your spouse sign matching separate wills leaving everything to the survivor, then to the children, those wills are still revocable unless you also create a clear, enforceable agreement. If you want the survivor to be legally bound, include explicit contract language in both wills or sign a separate spousal agreement that meets North Carolina’s writing and acknowledgment requirements. Because you moved from another state and never completed local documents, it’s prudent to execute new North Carolina–compliant wills; you can consult remotely, but the signing must occur with two witnesses present and, ideally, a self-proving affidavit.

Process & Timing

1. Who files: Each spouse executes their own will. Where: Sign with two witnesses physically present in North Carolina; add a self-proving affidavit before a notary or authorized officer. What: Last Will and Testament with a self-proving affidavit in the statutory form. When: As soon as the plan is finalized; after a death, the named executor should present the will to the Clerk of Superior Court within 60 days.
2. To make mutual obligations binding, include clear “contract to make/not revoke” language in both wills or execute a separate written, acknowledged spousal agreement. Your attorney can coordinate remote consultations and an in-person signing session with witnesses and a notary.
3. Keep the originals safe. After the first death, the survivor (or named executor) presents the will for probate; after the second death, the remainder to children is carried out under the surviving spouse’s will or enforced under the contract if one exists.

Exceptions & Pitfalls

• “Mutual” ≠ binding: Reciprocal wills alone do not stop the survivor from changing their will. Clear contractual language (or a separate written, acknowledged agreement) is required.
• Witnessing must be in person: North Carolina’s temporary video-witnessing/notarization laws expired; plan an in-person signing with two witnesses. A notary is only needed for the self-proving affidavit.
• Nonprobate assets can bypass the plan: Joint accounts, beneficiary designations, and TOD/POD designations pass outside the will and must be coordinated with the plan.
• Out-of-state wills: Prior wills may be valid here if they met the other state’s law, but updating to a North Carolina–compliant, self-proved will reduces probate friction.
• Spousal protections: North Carolina’s elective-share and related spousal rights can affect distributions if a spouse is disinherited or underprovided for.

Talk to a Estate Planning Attorney

If you’re dealing with whether to use mutual wills or separate wills and want the survivor bound to a plan for your children, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.