Short Answer

Yes. In North Carolina, when an attested will is not self-proved and the subscribing witnesses are unavailable (for example, because they have died), the Clerk of Superior Court may accept affidavits from people familiar with the handwriting of the testator and the witnesses. You generally need affidavits proving the testator’s handwriting and the handwriting of at least two unavailable witnesses, plus any other proof needed to satisfy the clerk that the will was properly executed.

Understanding the Problem

You want to open your spouse’s estate in North Carolina. The only will is decades old, lacks self-proving language, and both witnesses have died. Can you, as the surviving spouse who was present when the will was signed, submit affidavits confirming your spouse’s and the witnesses’ handwriting so the Clerk of Superior Court can admit the will to probate?

Apply the Law

North Carolina allows an attested will to be proved without live witness testimony if the subscribing witnesses are unavailable. The probate forum is the Clerk of Superior Court in the county where the decedent was domiciled. If no attesting witnesses are available, the clerk may admit the will based on: (1) proof of the handwriting of at least two unavailable attesting witnesses; (2) proof of the testator’s handwriting (unless the testator signed by mark); and (3) any other proof that satisfies the clerk the will was duly executed. Affidavits may be taken before a notary and submitted to the clerk.

Key Requirements

• Unavailable witnesses: Show each subscribing witness is unavailable (e.g., deceased) and state how you know.
• Handwriting proof of witnesses: Provide affidavits from persons familiar with the handwriting of at least two unavailable subscribing witnesses.
• Handwriting proof of the testator: Provide an affidavit from someone familiar with the decedent’s handwriting (unless the will was signed by mark).
• Other competent proof: Offer additional facts that reassure the clerk the will was properly executed (for example, a person present at signing).
• Affidavit procedure: Witness examinations may be by affidavit before a notary and transmitted to the clerk.
• Where and timing: File with the Clerk of Superior Court in the decedent’s county of domicile; an executor should present the will within 60 days or others may apply after notice.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-8 (Manner of proving attested will) – Allows probate based on handwriting proof when witnesses are unavailable and permits other competent proof.
• North Carolina Gen. Stat. § 28A-2A-16 (Witness affidavits) – Permits witness examinations by affidavit before a notary and transmission to the clerk.
• North Carolina Gen. Stat. § 31-3.3 (Execution of attested wills) – Sets the formal execution requirements the clerk must be satisfied were met.
• North Carolina Gen. Stat. § 28A-2A-2 (Who may apply; timing) – Executor should present the will within 60 days; others may apply after notice.

Analysis

Apply the Rule to the Facts: Here, the will is not self-proved and both subscribing witnesses are deceased, so they are “unavailable.” To admit the will, the clerk will look for: (1) proof of your spouse’s handwriting and (2) proof of the handwriting of at least two unavailable witnesses (typically the two who signed the will), plus (3) any other proof showing proper execution. Because you were present at signing and are familiar with the handwriting, your affidavit can supply some or all of this proof; the clerk may still prefer an additional corroborating affidavit from another person who knows those signatures.

Process & Timing

1. Who files: The named executor, or another interested person if the executor does not act. Where: Clerk of Superior Court in the county of the decedent’s domicile. What: Original will; death certificate; AOC-E-201 (Application for Probate and Letters); AOC-E-301 (Affidavits for Probate of Will – Witness(es) Not Available) with statements of witness unavailability and handwriting proofs; any supporting exhibits. When: Executors should present the will within 60 days of death; others may apply after giving 10 days’ notice to the executor.
2. The clerk reviews the filings. If needed, the clerk may ask for additional “other proof” (for example, an affidavit from someone who observed the signing or from the drafting attorney) or may request that affidavits be resubmitted with clearer handwriting familiarity foundations. Processing can vary by county.
3. If satisfied, the clerk issues AOC-E-304 (Certificate of Probate) and, if you’re qualifying as personal representative, Letters Testamentary/Letters of Administration with Will Annexed. The will is recorded and remains on file with the clerk.

Exceptions & Pitfalls

• If the testator signed by mark, proof of the testator’s handwriting may not be required, but the clerk will still need other competent proof of due execution.
• One affiant is often not enough: you need handwriting proof for at least two subscribing witnesses plus the testator. Be sure each affiant explains how they know the handwriting.
• Attach clear proof of unavailability for each witness (e.g., noting death) and use the correct affidavit form to avoid delays.
• If your affidavit relies on being present at the signing, keep your statement focused on what you saw; the clerk may still ask for corroboration from another competent witness if available.
• If anyone plans to contest the will, consider probate in solemn form to resolve execution questions with notice to all interested parties.

Talk to a Probate Attorney

If you’re dealing with a decades-old, non‑self‑proving will and unavailable witnesses, 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.