Short Answer

Yes. In North Carolina, an “interested person” (such as an heir or beneficiary) can challenge a will already admitted to probate by filing a caveat. If a newer will exists, you cannot simply swap it in—your challenge goes to Superior Court, and the clerk must also freeze distributions during the challenge. You can ask the Clerk of Superior Court to order anyone holding the newer will to produce it.

Understanding the Problem

The question here is narrow: in North Carolina, can a family member challenge the use of an older will when a later will is being withheld? The actor is an heir who wants relief from the probate of an outdated will. The trigger is admission of the older will to probate; timing matters because challenges are time-limited. In your situation, the family probated an older will and refuse to share the most recent will.

Apply the Law

North Carolina allows challenges to a probated will through a caveat. You must have a direct financial stake in the estate (standing), file within the statutory time, and file in the estate’s county with the Clerk of Superior Court. If someone is concealing a later will, you may ask the clerk to compel its production by affidavit. Once a caveat is filed, the clerk transfers the case to Superior Court for a jury to decide which, if any, writing is the decedent’s true last will. During the caveat, the personal representative may not distribute estate assets.

Key Requirements

• Standing: You must be an “interested person” with a direct pecuniary interest (for example, a child, beneficiary, or heir affected by the will).
• Deadline: File the caveat within three years after the will was probated in common form; probate in solemn form with proper service can bar later challenges.
• Forum and transfer: File the caveat with the Clerk of Superior Court in the estate file; the clerk transfers the case to Superior Court for jury trial.
• Later will handling: You cannot simply offer a later will after an earlier will is probated; you must challenge the first will by caveat. All scripts (wills/codicils) should be presented in the same proceeding.
• Compel production: If someone holds the newer will, file an affidavit application asking the clerk to summon that person to produce it or state its whereabouts.
• Estate freeze: After a caveat is filed, the clerk orders no distributions and restricts payments to limited administration expenses while the case is pending.

What the Statutes Say

• N.C. Gen. Stat. § 31-32 (Caveat to will) – Who may file a caveat and the three-year filing window after probate in common form.
• N.C. Gen. Stat. § 28A-2A-7 (Probate in solemn form) – Procedure, notice to interested parties, and transfer to Superior Court if contested.
• N.C. Gen. Stat. § 28A-2A-4 (Compel production of will) – Affidavit-based application for a clerk’s summons requiring production of a will.
• N.C. Gen. Stat. § 31-36 (Estate during caveat) – Bars distributions and limits payments while a caveat is pending.

Analysis

Apply the Rule to the Facts: Your spouse, as a child and beneficiary of the decedent, has standing to challenge the older will. Because family members probated an older will and refuse to provide the newer one, your spouse can first ask the clerk to compel anyone holding the updated will to produce it. If the older will has been probated in common form, your spouse can file a caveat within three years; the case then goes to Superior Court, and the clerk will freeze distributions during the challenge.

Process & Timing

1. Who files: Your spouse (as an interested heir). Where: Clerk of Superior Court in the county where the estate is open. What: (a) An affidavit application to compel production of the newer will; (b) a caveat to challenge the probated will (no standard AOC form). When: File the compel-application immediately; file the caveat within the three-year window after the will was probated in common form.
2. The clerk issues a summons on the compel application directing the person holding the will to produce it or disclose its whereabouts. If a caveat is filed, the clerk transfers the case to Superior Court, gives notice to interested parties, and enters an order limiting estate activity during the case. Timing for hearings and trial varies by county.
3. The Superior Court decides which writing (if any) is the decedent’s valid last will. The court’s judgment governs, the will is treated as probated in solemn form, and the clerk updates the estate administration accordingly.

Exceptions & Pitfalls

• Solemn form bar: If the older will was probated in solemn form and you were properly served, you generally cannot later file a caveat.
• Don’t “re-probate” later will: Once an earlier will is probated, you cannot simply offer a later will at the clerk’s counter; use a caveat so the court decides all scripts together.
• Lost-copy hurdles: If only a copy of the newer will exists, you must prove due execution, contents, and that it wasn’t revoked; otherwise the copy may not be accepted.
• Service and notice: Make sure all interested parties are properly served in the caveat; improper notice can delay or undermine the case.
• Non-probate assets: Life insurance with named beneficiaries generally passes outside the will; challenging the will may not affect those proceeds.

Talk to a Probate Attorney

If you’re dealing with an older will being used in probate while a newer will is withheld, 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.