Can a will and health care power of attorney executed in West Virginia be admitted for probate and decisions in North Carolina?

When someone moves or dies owning a will and health care power of attorney (HCPOA) drafted in West Virginia, North Carolina law allows admission if the original documents meet our basic execution requirements. Under N.C. Gen. Stat. §28A-12-3 (valid wills) and §28A-12-4 (attested wills), an “attested will” must be signed by the testator in front of two witnesses. If the will is not “self-proving” under N.C. Gen. Stat. §31-11.1, the personal representative must either locate and subpoena the attesting witnesses or file an affidavit explaining why the witnesses are unavailable. Wake County clerks will follow these instructions when you submit the will for probate, but you should always check with your local county clerk’s office for any county-specific procedures.

Health care powers of attorney executed out of state generally will bind North Carolina health care providers if they substantially conform to our Uniform Health Care Decisions Act (§32C-3-302). However, West Virginia forms from the 1990s often lack North Carolina-required language. If the principal (or their agent) has capacity, it’s best to re-execute a North Carolina HCPOA under Chapter 32C—ideally with a physician’s note confirming testamentary capacity on the signing date. That way you avoid challenges later by family members or medical providers.

Key steps to admit an out-of-state will and HCPOA:

• Locate the original will and verify witness signatures. If no self-proving affidavit exists, document why witnesses are unavailable (deceased, relocated or refuse).
• File the will with the clerk of superior court in the county where the decedent lived (e.g., Wake County).
• Complete and file an “Affidavit of Due Execution” for missing witnesses under N.C. Gen. Stat. §28A-12-7.
• Review the West Virginia HCPOA. If it omits North Carolina’s statutory formalities, prepare a new HCPOA under §32C-3-302.
• Obtain a physician’s letter confirming the principal’s capacity when signing new estate planning documents.
• Record new documents locally if required by county practice and distribute certified copies to providers and institutions.

If you need more detail on admitting out-of-state documents, see our article on this topic: Can a West Virginia–executed will and health-care power of attorney be admitted for probate and decisions in North Carolina?

Every county has slight procedural variations. Before you go to the Wake County (or your home county) clerk’s office, call them and confirm what forms they require and whether they will accept your HCPOA without re-recording.

At Pierce Law Group, our attorneys have helped hundreds of families navigate admission of out-of-state wills and powers of attorney. For assistance preparing affidavits of due execution, re-executing health care directives, or confirming capacity, please contact us:

Email: intake@piercelaw.com
Phone: (919) 341-7055

Full formal probate in North Carolina involves filing letters of testamentary or administration, notifying creditors and waiting six to nine months for estate closure. If the surviving spouse simply needs to retitle jointly held assets (house, car, bank accounts), the year’s allowance under N.C. Gen. Stat. §30-14 offers a faster, less expensive alternative.

Under this procedure, the first $60,000 of the decedent’s personal property passes directly to the surviving spouse—creditors take nothing from that allowance. Real estate held as tenancy by the entirety already passes by operation of law. For other jointly titled assets without rights of survivorship, the year’s allowance assigns the spouse’s statutory share without full probate.

Using Wake County as an example, here’s how to proceed:

1. Identify jointly held assets:
• Real estate titled tenancy by the entirety
• Bank accounts—confirm if “with rights of survivorship” or “without.”
• Vehicles—verify title form (50/50 or survivorship).
2. Obtain documentation:
• Certified copy of the death certificate.
• Title certificates or signature cards stating survivorship status.
• Vehicle title applications reflecting joint ownership.
3. Prepare and file a “Petition and Assignment for Year’s Allowance” with the clerk of superior court in your county.
4. Include a short schedule of assets and their values (Kelly Blue Book for vehicles, bank statements, etc.).
5. Have the surviving spouse (or their financial power of attorney) sign the petition and assignment in front of a notary.
6. Pay the filing fee (usually under $100). Wake County processes these petitions in about 4–6 weeks.
7. Clerk issues an Order of Assignment allocating up to $60,000 to the spouse and authorizing retitling.
8. Record the order where required (Register of Deeds for real estate, Division of Motor Vehicles for vehicles, bank for accounts).

This approach avoids full probate, creditor notices and a lengthy estate administration. If asset values exceed $60,000, you may amend the assignment later—North Carolina law allows the surviving spouse to adjust the allowance over time.

For additional guidance on retitling vehicles under the year’s allowance in Guilford County, see our post: How can a surviving spouse retitle and sell a deceased spouse’s vehicles in Guilford County under the year’s allowance?

Always check with your local county clerk—procedures and fees vary. If you need help completing petitions, assembling documentation, or confirming tenancy status, reach out to Pierce Law Group. Our attorneys guide surviving spouses through year’s allowance assignments every week.

Email: intake@piercelaw.com
Phone: (919) 341-7055