Short Answer

In North Carolina, a parent may start a challenge to a grandparent’s will on behalf of minor children, but the court will appoint a guardian ad litem to represent the children’s interests. Disinherited grandchildren can contest a will only if they are “interested” in the estate—typically because they would take under a prior will or by intestacy— and they must meet strict deadlines. Most will contests (caveats) must be filed within three years after the will was probated in common form. If the will was probated in solemn form with proper service, later challenges are usually barred.

Understanding the Problem

In North Carolina probate, can a parent seek relief for minor children who were left out of a grandparent’s probated will, when the family learned of the will a few years after probate and the family home has already been sold?

Apply the Law

North Carolina uses two probate tracks. Most wills are admitted in common form, an ex parte process that starts a three-year window to file a will contest (a “caveat”). A caveat is filed with the Clerk of Superior Court and then tried in Superior Court before a jury. Grandchildren have standing only if they are “interested” in the estate (for example, they would inherit under a prior will or by intestacy). Minors may proceed through a court‑appointed guardian ad litem. If the will was admitted in solemn form with proper service on interested parties, later caveats are generally barred.

Key Requirements

• Standing (“interested” person): The child must have a direct financial stake—such as inheriting under a prior will or by intestacy. Mere disappointment is not enough.
• Timely filing: File a caveat within three years after probate in common form; minors and incompetents get additional time after the disability is removed.
• Proper forum: File the caveat with the Clerk of Superior Court in the county of probate; the case transfers to Superior Court for jury trial.
• Grounds to challenge: Typical grounds include improper execution, lack of capacity, undue influence, fraud, forgery, mistake, or revocation by a later will.
• Minors’ representation: The court appoints a guardian ad litem to protect a minor’s interests in the proceeding.
• Effect on administration: Once a caveat is filed, distributions pause; the personal representative may preserve assets and pay limited items while the case is pending.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Caveat; who may file and when) – Allows an “interested” person to file a caveat, usually within three years after probate in common form; extends time for minors and incompetents.
• North Carolina Gen. Stat. § 31-33 (Transfer; jury trial; notice) – Requires transfer of a caveat to Superior Court for trial by jury and notice to interested parties.
• North Carolina Gen. Stat. § 28A-2A-7 (Solemn form probate) – Provides a conclusive probate process with notice; later caveats are barred if parties were properly served.
• North Carolina Gen. Stat. § 31-42 (Anti‑lapse) – Substitutes a deceased beneficiary’s issue in limited circumstances unless the will shows a contrary intent.

Analysis

Apply the Rule to the Facts: Because the will was probated “a few years ago,” the three‑year deadline is critical. If probate in common form occurred less than three years ago, your children (through a guardian ad litem) could file a caveat, but they must show they are “interested” (for example, they would inherit under a prior will or by intestacy). If more than three years have passed, options narrow unless a disability tolled the period for a minor. Suspecting an earlier will supports standing if that earlier will benefited your children, but you cannot simply offer a different will now; you must challenge the admitted will first.

Process & Timing

1. Who files: An interested person (for minors, a parent may initiate; the court appoints a guardian ad litem). Where: Clerk of Superior Court in the county where the will was probated. What: A caveat (no standard AOC form; it is a filed pleading). When: Generally within three years of probate in common form; minors may file within three years after turning 18.
2. After filing, the Clerk transfers the case to Superior Court for a jury trial. The court issues notice to interested parties, aligns parties, appoints a guardian ad litem for minors, and the case proceeds through discovery and usually mediation. Timeframes vary by county and case complexity.
3. Final judgment determines which instrument is the decedent’s will (or that none is valid). The estate then administers and distributes according to that judgment; if a caveat succeeds, distributions change accordingly.

Exceptions & Pitfalls

• If the will was probated in solemn form with proper service on interested parties, later caveats are typically barred.
• Simply learning about the will late does not extend the deadline. Confirm the date the Clerk admitted the will to probate.
• You cannot avoid the existing probate by attempting to submit a different will; you must challenge the admitted will first.
• If real estate was sold, the sale may still stand (especially under an executor’s power of sale or a court‑approved sale). Unwinding past transfers is limited and fact‑specific.
• Minors must be represented by a guardian ad litem; failing to ensure proper representation can jeopardize claims.

Talk to a Probate Attorney

If you’re dealing with a North Carolina will that left your children out, 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.