Dec192025
Probate Q&A Series

How can I contest a will that has already been submitted for probate? – North Carolina

Short Answer

In North Carolina, the usual way to contest a will after it has been submitted for probate is to file a caveat in the decedent’s estate file with the Clerk of Superior Court. In many cases, a caveat must be filed within three years after the will is probated in “common form,” although different timing rules can apply if the will was probated in “solemn form” or if the challenger had a legal disability. After a caveat is filed, the clerk transfers the case to Superior Court for a jury trial on whether the will is valid.

Understanding the Problem

In North Carolina probate litigation, the question is how a person can challenge the validity of a will after the will has already been submitted to the Clerk of Superior Court and the estate case has started. The decision point is whether the will has been admitted to probate in a way that still allows a challenge and, if so, what filing starts that challenge and moves the dispute into the proper court division.

Apply the Law

North Carolina law generally treats a will challenge as a caveat proceeding. A caveat is the procedural filing used to contest whether the submitted document is the decedent’s valid will (often phrased as the issue of “is this the will or not”). The caveat is filed with the Clerk of Superior Court in the estate file. Once filed, the clerk must transfer the case to Superior Court for a jury trial on the will’s validity, and the caveat must be served on interested parties using civil summons procedures.

Key Requirements

  • Standing (who may file): The person contesting must be an “interested” party with a direct financial stake in how the estate is distributed if the will is upheld or thrown out.
  • Timing (when it must be filed): If the will was probated in common form, the caveat generally must be filed within three years after probate, with limited extensions for minors and certain incompetencies.
  • Proper forum and service: The caveat is filed with the Clerk of Superior Court (in the estate file), then transferred to Superior Court, and the caveat must be served on all interested parties under the North Carolina Rules of Civil Procedure.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a person seeking to contest a will and pursue probate litigation after a will has been submitted for probate. Under North Carolina law, that challenge is typically brought by filing a caveat in the estate file with the Clerk of Superior Court, assuming the caller qualifies as an “interested” person and the filing falls within the applicable time window (most commonly, within three years after common-form probate). Once filed, the clerk transfers the dispute to Superior Court where the validity of the will is decided.

Process & Timing

  1. Who files: An interested person (often an heir who would take under intestacy or under a different will, or a beneficiary whose share changes if the will is invalid). Where: The decedent’s estate file in the office of the Clerk of Superior Court in the county where the estate is administered in North Carolina. What: A caveat filed in the estate file; the clerk then issues the transfer order. When: Commonly within three years after common-form probate; if the will is in a solemn-form probate proceeding, the challenge generally must be raised before or at the clerk’s hearing in that proceeding.
  2. Transfer and service: After the caveat is filed, the clerk transfers the case to Superior Court for a jury trial. The caveat must be served on all interested parties using civil summons procedures, and then the court holds a hearing to align interested parties on the “pro-will” or “anti-will” side.
  3. Administration while the contest is pending: During the caveat, the clerk issues an order that generally prevents distributions to beneficiaries and limits commissions. The personal representative can still preserve assets and handle certain bills and claims, but the statutes add a notice-and-objection process for certain payments while the will contest is pending.

Exceptions & Pitfalls

  • Common form vs. solemn form: A caveat is commonly available within three years after a will is probated in common form, but a solemn-form probate can bind parties who were properly served, and it can require raising the will-validity issue in that proceeding.
  • Standing problems: Not every relative or disappointed person can file. North Carolina generally requires a direct financial interest affected by whether the will stands.
  • Service and party notice errors: Caveat cases require service and later party-alignment steps. Missing an interested party or mishandling notice can create delays, added expense, and fights about whether a judgment binds someone.
  • Trying to “probate a different will” as a workaround: When a will has already been admitted to probate, North Carolina practice often requires attacking that will directly through a caveat rather than attempting a collateral workaround.
  • Security/bond risk: A caveator does not automatically post a bond at filing, but an aligned party can ask the Superior Court to require security depending on case-specific factors.

Conclusion

In North Carolina, contesting a will that has already been submitted for probate usually requires filing a caveat in the decedent’s estate file with the Clerk of Superior Court. For wills probated in common form, the key threshold is that the challenger must be an “interested” party, and the key deadline is often three years from the probate date. The next step is to file the caveat with the clerk within the applicable deadline so the matter can be transferred to Superior Court for a jury determination of validity.

Talk to a Probate Attorney

If a will has been filed in North Carolina and there is a need to challenge its validity through a caveat, our firm has experienced attorneys who can help evaluate standing, deadlines, and the steps required in Superior Court. 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.