Aug82025
Probate Q&A Series

How can I probate a foreign will in North Carolina if it wasn’t notarized? — North Carolina

Short Answer

In North Carolina, a will does not have to be notarized to be valid. If a will was signed in another state or country and wasn’t notarized, you can still probate it here by showing it was executed according to the law of the place where it was signed or where the person lived (domiciled) when they signed it or died. If the will is not “self‑proved,” the clerk will require witness testimony or other proof of proper execution. If the will was already probated elsewhere, you can file certified copies in North Carolina and the clerk will review them to ensure the will meets North Carolina’s recognition rules.

How North Carolina Law Applies

North Carolina recognizes wills that were validly executed in other places. A will is valid here if it met the law where it was signed or where the person was domiciled when they signed it or at death. Notarization mainly matters for “self‑proved” wills (which avoid witness testimony). A non‑notarized will can still be probated; you just need to supply proof of proper execution.

You have two common paths:

  • Original probate in North Carolina: File the original out‑of‑state or foreign will with the clerk. If it is not self‑proved, you provide witness affidavits or other allowed proof of execution.
  • Ancillary probate of a certified copy: If the will was already probated in another state or country, file certified copies of the will and that jurisdiction’s probate order. The clerk may accept it as if it were the original if satisfied the will was properly executed under the other jurisdiction’s law. For wills proved outside the United States, certification by a U.S. ambassador/consul is required.

A leading North Carolina practice guide explains that when an out‑of‑state will isn’t self‑proved, the clerk admits it upon a showing that it was executed in accordance with North Carolina’s recognition statute. Another guide notes you may also probate a foreign will here as an attested written will or, if appropriate, as a holographic will, which can avoid a complex foreign‑law analysis.

Key Requirements

  • Validity under recognition rules: Show the will was executed under the law of the place of execution or the testator’s domicile at execution or death. See N.C. Gen. Stat. § 31-46.
  • If not self‑proved: Provide proof of execution. Typically either (a) affidavits/testimony of two attesting witnesses, or (b) if witnesses are unavailable, handwriting proof and other evidence that satisfies the clerk as to genuineness and due execution. See § 28A-2A-8 and § 28A-2A-16.
  • If already probated elsewhere: File certified copies of the will and the foreign probate order; if from outside the U.S., obtain U.S. diplomatic certification. The clerk must be satisfied that the will is valid under § 31-46. See § 28A-2A-17.
  • Attested written will basics (if you prove it as an NC attested will): Signed by the testator and attested by two competent witnesses. Notarization is not required for validity. See § 31-3.3.
  • Self‑proof (optional convenience): Notarization is typically part of a self‑proving affidavit, which lets a will be probated without witness testimony. Out‑of‑state self‑proved wills may be treated as self‑proved in NC if compliant where executed or domiciled. See § 31-11.6.

Process & Timing

  1. Choose your route:
    • Original probate in NC (out‑of‑state/foreign will not yet probated elsewhere), or
    • File certified copies if the will has already been probated in another jurisdiction (ancillary probate).
  2. File with the clerk of superior court in the NC county where the decedent owned property or where administration is appropriate. Typically submit:
    • Application for probate and, if needed, for appointment of a personal representative.
    • Original will (for original probate) or certified copies of the will and foreign probate order (for ancillary probate). For wills probated outside the U.S., obtain certification by a U.S. ambassador/consul.
    • If not self‑proved: Witness affidavits or other proof permitted by statute (e.g., handwriting affidavits if witnesses are unavailable).
  3. Proof if not self‑proved:
    • Two witnesses available: clerk may admit the will upon their testimony/affidavits.
    • Only one witness available: add handwriting proof of the other witness and of the testator, plus any other evidence that satisfies the clerk.
    • No witnesses available: provide handwriting proof of at least two witnesses and of the testator, plus other competent evidence.
  4. Form of probate:
    • Common form: an ex parte proceeding; most wills are admitted this way.
    • Solemn form: noticed hearing; if admitted, later caveats are generally cut off for served parties.
  5. Timing notes:
    • A named executor may apply any time after death. If they do not apply within 60 days, a devisee or interested person may apply on 10 days’ notice to the executor.
    • There is generally no absolute deadline to offer a will for probate, but related deadlines and title protections can apply in some contexts.

What the Statutes Say

Exceptions & Pitfalls

  • Notarization myth: A will can be valid without notarization; lack of notarization just means you must provide additional proof.
  • Foreign certification: If you rely on a certified copy from outside the U.S., it must be certified by a U.S. ambassador, minister, consul, or commercial agent under official seal.
  • Unavailable witnesses: The clerk can accept handwriting proof and other competent evidence if witnesses are dead, out of state, cannot be found, or are otherwise unavailable, but you must document unavailability.
  • Real estate title: For NC real property, the clerk must be affirmatively satisfied the will is valid under the recognition statute before recording will pass clear title.
  • Contests: If a challenge seems likely, consider probate in solemn form to give notice and potentially foreclose later caveats for served parties.
  • County practices vary: Forms and evidentiary preferences can vary by county; check with the clerk in advance.

Helpful Hints

  • Collect the execution details: when/where the will was signed, names and contacts for the two witnesses, and the testator’s domicile at signing and at death.
  • If the will was already probated elsewhere, request certified (or exemplified if required) copies of the will and the foreign court’s probate order as early as possible.
  • When witnesses are unavailable, line up handwriting affidavits from people familiar with the testator’s and witnesses’ handwriting.
  • Ask the clerk which AOC forms they prefer. Common forms include the probate application and witness affidavits; for out‑of‑state wills, the addendum form is often requested.
  • Consider whether the will could be probated as a holographic will if it is entirely in the testator’s handwriting and signed—this can simplify proof in some cases.

Sources & References

  • North Carolina Clerks of Superior Court Manual (2024), Decedents’ Estates, Section 2-6: Probate of Wills (pp. 66–116), including guidance on out‑of‑state/foreign wills, self‑proved wills, proof requirements when witnesses are unavailable, common vs. solemn form, and certified copies from other jurisdictions.
  • North Carolina Estate Administration Manual, Supplemented 10th Ed. (2024), Chapter IV §6.00 (pp. 148–150) and Chapter XII (pp. 733–739): procedures for probating attested and out‑of‑state wills, ancillary probate, certified/exemplified copies, and title to real property.
  • North Carolina Fiduciary Litigation Manual (2022/2024 supp.), Chapter X: Will Caveats and Solemn Form Probate (pp. 358–366): practice insights on using probate in solemn form to foreclose later caveats and evidentiary considerations.

Disclaimer: This article is general information about North Carolina law, not legal advice. Reading it does not create an attorney‑client relationship.

Talk to a Probate Attorney

If you’re dealing with probating an out‑of‑state or foreign will that wasn’t notarized, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

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.