Understanding the Problem
A holographic will is handwritten by the person making it and may lack the usual signatures of two witnesses. North Carolina recognizes this type of will, but the person offering it for probate must establish both that the document meets the required form and that the handwriting and name belong to the deceased person. The original document, handwriting witnesses, proper filing location, and qualification of the proposed personal representative are therefore important.
Apply the Law
Key Requirements
A holographic will must contain words in the testator’s handwriting that are sufficient to constitute the will. Other words or printed material do not invalidate it if they do not affect the meaning of the handwritten words. The will must also be subscribed by the testator or have the testator’s name written in or on it in the testator’s own handwriting. No attesting witness is required. See N.C. Gen. Stat. § 31-3.4.
A handwritten will bearing the testator’s signature and the signatures of two witnesses may instead qualify as an attested written will if it meets all execution and witnessing requirements of N.C. Gen. Stat. § 31-3.3. Among other requirements, the testator must sign or acknowledge the signature to the witnesses, and each witness must sign in the testator’s presence.
What the Statutes Say
Under N.C. Gen. Stat. § 28A-2A-9, a holographic will may be probated only upon testimony from at least three competent witnesses. Each must believe that the will is written entirely in the handwriting of the person whose will it purports to be and that the testator’s name, as written in or on or subscribed to the will, is in that person’s handwriting.
Venue is generally the county where the decedent was domiciled at death. If the decedent was not domiciled in North Carolina, venue may lie in a county where the decedent left property or assets. See N.C. Gen. Stat. § 28A-3-1.
Analysis
Process & Timing
To seek probate, take the following steps promptly:
- Locate the original handwritten will and preserve it without marking, stapling, or altering it.
- Confirm that the dispositive words and the testator’s name satisfy the handwriting requirements.
- Identify at least three competent witnesses who can testify that they believe the document and the testator’s name are in the testator’s handwriting.
- Gather acceptable proof of death, commonly a certified death certificate.
- Prepare the probate application and application for Letters Testamentary, including the required information about the decedent, applicant, heirs, devisees, and estate property.
- File with the Clerk of Superior Court in the proper county and pay the applicable filing fees.
- Present the will and supporting testimony or written proofs as directed by the clerk.
Under N.C. Gen. Stat. § 28A-6-1, the clerk may accept a certified death certificate or other sufficient evidence of death. If the application and evidence comply with the statute and the applicant is entitled to appointment, the clerk may issue Letters Testamentary, giving the qualified personal representative authority to administer the estate.
Exceptions & Pitfalls
A common pitfall is relying on fewer than three competent handwriting witnesses. Another is assuming that two signatures automatically make a handwritten document an attested will without confirming that the testator and witnesses followed the required signing and acknowledgment formalities.
North Carolina formerly required a holographic will to be found among the testator’s valuable papers or effects, in the custody of a person or place authorized by the testator, or in another statutorily permitted location. That requirement was repealed for estates of decedents dying on or after July 8, 2021. An estate involving an earlier death may still require analysis under the former rule, so the date of death matters.
Conclusion
North Carolina permits a holographic will when its operative words and the testator’s name satisfy the handwriting requirements, even without attesting witnesses. Admission to probate requires testimony from at least three competent witnesses identifying the handwriting and name. The former rule concerning where the will was found may still matter if the decedent died before July 8, 2021. Preserve the original, identify the necessary witnesses, and file promptly with the Clerk of Superior Court in the proper county.
Talk to a Probate Attorney
Pierce Law Group can help evaluate a handwritten will, assemble the required proof, and guide you through probate. For a free case evaluation, email [email protected] or call (919) 341-7055.
