Short Answer

In North Carolina, a verbal will (called a “nuncupative will”) can be admitted to probate only if it was made during the decedent’s last sickness, the decedent declared the words to be their will, and specifically asked two competent witnesses—present at the same time—to bear witness to it. It can dispose of personal property only, not real estate. The Clerk of Superior Court must give notice to the surviving spouse and next of kin, and it generally cannot be proved until 14 days after death. It also cannot be proved until the testimony is reduced to writing, nor after six months from speaking the testamentary words unless the testimony was reduced to writing within 10 days after speaking them.

Understanding the Problem

You want the Clerk of Superior Court in North Carolina to recognize a verbal will at a probate hearing. The single issue is whether you can prove a nuncupative will so it controls the estate. Here, two people heard the decedent’s verbal will naming two sons. You need to know what must be shown, where to file, and the key timing rule to avoid losing the ability to probate the oral declaration.

Apply the Law

North Carolina allows nuncupative (oral) wills in narrow circumstances. The decedent must have made the will during the last sickness. The decedent must have declared the statement to be a will and specifically requested two competent witnesses to be present and to bear witness at the same time. Before admitting a nuncupative will, the Clerk must give written notice to the surviving spouse and next of kin. The will can only transfer personal property. It cannot be proved until 14 days after death, and it cannot be proved until the testimony is reduced to writing. It also cannot be proved after six months from speaking the testamentary words unless the testimony was reduced to writing within 10 days after speaking them.

Key Requirements

• Last sickness: The decedent spoke the will during last sickness.
• Clear declaration and request: The decedent declared the words to be a will and asked two competent witnesses to bear witness to it.
• Simultaneous witnesses: Both witnesses were present at the same time when the will was spoken.
• Competent proof: Two competent witnesses must testify to the words or substance of the words; the testimony must be reduced to writing.
• Notice first: The Clerk must give written notice to the surviving spouse and next of kin before probate.
• Time limits: The will cannot be proved until 14 days after death, and it cannot be proved after six months from speaking the testamentary words unless the testimony was written down within 10 days after they were spoken.
• Scope: The oral will can transfer personal property only (not real estate).

What the Statutes Say

• N.C. Gen. Stat. § 31-3.5 (Nuncupative wills) – Defines an oral will and core execution elements.
• N.C. Gen. Stat. § 28A-2A-10 (Probate of nuncupative wills) – Requires notice to spouse/kin, written witness testimony, and sets the 14-day, six-month, and 10-day timing rules.
• N.C. Gen. Stat. § 31-3.2 (Property passing by will) – Limits nuncupative wills to personal property.
• N.C. Gen. Stat. § 31-5.1 (Revocation of wills) – Written will revocation methods; an oral will does not revoke a written will.

Analysis

Apply the Rule to the Facts: Two witnesses, including an attorney relative, heard the decedent name the two sons. If those witnesses can testify that the decedent declared the statement to be a will, asked them to bear witness to it, and both were present together, the core witness element is met. The testimony must be reduced to writing. If the testimony was not reduced to writing within 10 days after the words were spoken, the will cannot be proved after six months from when it was spoken; it can control only personal property.

Process & Timing

1. Who files: A propounder (often a named beneficiary or other interested person). Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: Application for probate and letters (AOC‑E‑201) plus sworn witness testimony reduced to writing reciting the terms and circumstances of the oral will; request the Clerk to issue the required notices to the surviving spouse and next of kin. When: File so the will can be proved within six months of when it was spoken, unless the testimony was reduced to writing within 10 days after the words were spoken; it also cannot be proved until 14 days after death.
2. The Clerk sends written notice to the surviving spouse and next of kin (publication if needed). After the notice period, the Clerk takes testimony from two competent witnesses to the words or substance of the words and their simultaneous presence. Scheduling can vary by county.
3. If admitted, the Clerk issues a Certificate of Probate and appoints a personal representative by issuing Letters (if requested), and the estate proceeds through formal administration.

Exceptions & Pitfalls

• If the decedent was not in “last sickness,” an oral will cannot be probated.
• If the decedent did not declare the statement as a will and ask two competent witnesses who were simultaneously present to bear witness to it, probate will be denied.
• An oral will cannot transfer real estate—only personal property. Real property passes by a valid written will or, absent that, by intestacy.
• Do not rely on a defective written will as an oral will; a flawed or unsigned document cannot be probated as a nuncupative will.
• A beneficiary serving as a witness can create competency and evidentiary issues; use disinterested witnesses to avoid challenges.
• Notice defects (surviving spouse/next of kin) can derail probate; ensure proper notice or publication before the hearing.

Talk to a Probate Attorney

If you’re dealing with a verbal will and a pending probate in North Carolina, 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.