Probating an Unwitnessed or Unnotarized Will in North Carolina
Detailed Answer
North Carolina law usually requires a written will to be signed by the testator and witnessed by at least two competent people (N.C. Gen. Stat. § 31-3.3). However, our statutes recognize two narrow exceptions that allow a will to be probated even when it lacks witnesses or a notary seal:
1. Holographic (Entirely Handwritten) Wills
- Requirements. The document must be entirely in the testator’s handwriting, signed by the testator, and found either (i) among the testator’s valuable papers, (ii) in a safe-deposit box, or (iii) in the possession of someone the testator trusted (§ 31-3.4).
- Proof. To probate a holographic will, you must present:
- The original document.
- Affidavits of three disinterested witnesses who can swear that the handwriting (including the signature) is the testator’s.
- An affidavit from the person who found the will describing where it was discovered.
- Filing. File the will, a probate application, and the required affidavits with the Clerk of Superior Court in the county where the decedent last resided (Chapter 28A, Article 2).
2. Nuncupative (Oral) Wills—Very Limited
- North Carolina allows an oral will for personal property only when the testator is in their last illness and speaking before two competent witnesses (§ 31-3.5).
- The witnesses must reduce the words to writing within 10 days and testify to what they heard. Because this is difficult to prove, nuncupative wills are rarely used and are never valid for real estate.
What Happens If the Document Is Typed but Not Witnessed?
A typed or partly typed will that lacks the legally required witnesses is invalid. The estate will pass under North Carolina’s intestate-succession rules (Chapter 29), and an heir or creditor may open a standard probate estate by applying for Letters of Administration.
Step-by-Step Guide to Probating a Holographic Will
- Safeguard the Original. Do not alter or staple anything to the document.
- Identify Witnesses. Find three people (not beneficiaries) who know the testator’s handwriting and are willing to sign affidavits.
- Prepare Affidavits. Your attorney can draft:
- Affidavit of Handwriting (one per witness).
- Affidavit of Discovery (from the person who located the will).
- File With the Clerk. Take the original will, affidavits, a death certificate, and the Application for Probate and Letters Testamentary (AOC-E-201) to the Clerk of Superior Court.
- Clerk’s Hearing. The clerk reviews the evidence. If satisfied, the clerk enters an Order of Probate and issues Letters Testamentary to the named executor.
- Administer the Estate. The executor now follows the usual probate process: inventory assets, pay debts, file accountings, and distribute property.
Helpful Hints
- Keep any handwritten wills in a safe place that loved ones can find—location matters under § 31-3.4.
- Photocopies are not accepted for probate; the clerk needs the original.
- Handwriting witnesses cannot be beneficiaries; choose neutral parties such as longtime friends or co-workers.
- An unwitnessed will that mixes handwriting and typing will not qualify as holographic.
- If you can’t meet the statutory requirements, prepare for an intestate estate and explore settlement agreements among heirs to avoid conflict.
Facing probate of an unwitnessed or unnotarized will? Our North Carolina probate attorneys have handled these tricky situations many times. We can quickly determine whether the document qualifies as a holographic will, gather the needed affidavits, and guide you through the clerk’s hearing. Call us today at (919) 341-7055 for a confidential consultation.
