Short Answer

Yes. In North Carolina, you may file a will caveat (will contest) any time within three years after the will is admitted to probate in common form; a criminal or medical death investigation does not stop you from filing. The caveat is filed with the Clerk of Superior Court, then tried in Superior Court. Once filed, the court restricts estate distributions and authorizes steps to preserve assets while the contest is pending.

Understanding the Problem

You want to know if you can contest your sister’s will now, even though authorities are still investigating her death. In North Carolina probate, the decision point is: can you, as an interested party, file a will caveat with the Clerk of Superior Court before the investigation is finished, to challenge the will’s validity and stop distributions? Your sister died unexpectedly, and the will names her foster child; you’re concerned about ongoing use of her home and bank funds.

Apply the Law

In North Carolina, a will admitted to probate in common form can be challenged only by filing a caveat with the Clerk of Superior Court. The caveat is then transferred to Superior Court for a jury trial on whether the document is truly the decedent’s last will (the devisavit vel non issue). A pending death investigation does not bar filing a caveat. After a caveat is filed, the Clerk orders the personal representative to pause distributions and to preserve assets; the court can also hear disputes about safeguarding property while the case is pending. The standard filing window is three years after probate in common form.

Key Requirements

• Standing (“interested” person): You must have a direct, immediate financial interest that would be affected by the will (for example, as an heir-at-law or beneficiary under another instrument).
• Will must be admitted to probate: A caveat can only be filed after the will is admitted to probate in common form; filing before probate is premature.
• Timing: File within three years after probate in common form; if probate in solemn form is sought, you must object before or at that hearing.
• Forum and process: File the caveat with the Clerk of Superior Court in the county of probate; the case is transferred to Superior Court for a jury trial.
• Asset preservation during the caveat: Once the caveat is filed, the personal representative must halt distributions and may only pay certain expenses under court-supervised procedures; parties can seek orders to safeguard assets.

What the Statutes Say

• N.C. Gen. Stat. § 31-32 (Caveats; who may file and when) – Any interested person may file a caveat within three years after probate in common form.
• N.C. Gen. Stat. § 31-33 (Procedure; transfer to Superior Court) – Clerk transfers the caveat to Superior Court for jury trial and provides notice.
• N.C. Gen. Stat. § 31-36 (Administration during pendency of caveat) – Distributions stop; personal representative preserves assets and pays limited items with notice and approval.
• N.C. Gen. Stat. § 28A-13-3 (Powers and duties of personal representative) – PR can secure and, if needed by court order, take possession of real property to protect the estate.

Analysis

Apply the Rule to the Facts: As the decedent’s sister, you likely qualify as an “interested” person because your financial share could change if the will is set aside (for example, under intestacy or a different instrument). A will has been filed; if it has been admitted to probate in common form, you may file a caveat now—no need to wait for the death investigation to conclude. Filing the caveat triggers court orders that stop distributions and allow steps to preserve the home and bank assets. Separately, North Carolina’s “slayer” rules can bar someone who unlawfully caused the death from inheriting; courts can make that determination even without a criminal conviction, but those citations vary by issue.

Process & Timing

1. Who files: An interested person (e.g., you). Where: Clerk of Superior Court in the North Carolina county where the will was probated. What: File a “caveat” to the will and, if needed, ask the Clerk for asset-preservation orders under the caveat statute; consider seeking appointment of a personal representative if none is serving. When: Within three years after probate in common form; if a solemn-form probate hearing is set, object before or at that hearing.
2. The Clerk transfers the case to Superior Court for a jury trial and issues an order pausing distributions. During the caveat, the personal representative must preserve property and may pay only limited expenses with notice; any party may ask the Clerk to resolve disputes about safeguarding assets. Timelines vary by county and court calendars.
3. Final resolution occurs by jury verdict or a court-approved settlement. The judgment either admits the will in solemn form or sets it aside; the file returns to the Clerk for estate administration consistent with the judgment.

Exceptions & Pitfalls

• If the will was probated in solemn form and you were served but did not object then, that probate can be binding.
• Do not file the caveat directly in Superior Court; it must be filed with the Clerk of Superior Court.
• Accepting meaningful benefits under the will may limit your ability to contest it later; get advice before signing releases or receipts.
• A caveat pauses distributions but not reasonable preservation steps; use the asset-preservation procedures to address urgent issues with the house or bank accounts.
• Only the personal representative (or by court order) should secure real property and recover estate assets; avoid self-help that could create liability.

Talk to a Probate Attorney

If you’re dealing with a contested will and need to protect estate assets while a death investigation continues, 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.