How do I get an out-of-state will accepted when it isn’t self-proving and the court wants witness affidavits? – North Carolina

Short Answer

In North Carolina, a will that is not “self-proved” usually must be proven to the Clerk of Superior Court with sworn testimony from the subscribing (attesting) witnesses. If the original witnesses are out of state, cannot be found, have died, or otherwise cannot provide affidavits, North Carolina law allows probate using alternative proof—most often affidavits about the witnesses’ unavailability plus proof of handwriting and other facts that satisfy the clerk that the will is genuine and was properly executed. The right approach depends on whether any witness is available and whether the will was already probated in the other state.

Understanding the Problem

In North Carolina probate, the key issue is how to prove an out-of-state will to the Clerk of Superior Court when the will does not include a self-proving affidavit and the clerk requires sworn affidavits from the original witnesses. The decision point is whether the will can be admitted to probate using witness affidavits, or whether the will must be proven using a different method because the witnesses are unavailable or the will was already handled in another state. This matters because the estate administration cannot move forward until the clerk admits the will and issues authority to act for the estate.

Apply the Law

North Carolina probate is handled through the Clerk of Superior Court (Estates). If a will is self-proved, the clerk can usually admit it without tracking down witnesses. If it is not self-proved, the clerk generally requires witness testimony—often by affidavit—unless the witnesses are “unavailable,” in which case North Carolina allows other proof (such as handwriting proof and other evidence of due execution). For out-of-state wills, North Carolina also recognizes wills that were validly executed under certain other-jurisdiction rules, and separate procedures may apply if a certified copy of a will and probate record already exists from another state.

Key Requirements

Show the will is valid for North Carolina purposes: For an out-of-state will, the propounder typically must show the will was executed in a way North Carolina recognizes (often by showing it complied with the law where it was signed or where the decedent was domiciled at signing or death).
Provide the required proof to admit the will: If the will is not self-proved, the clerk typically expects affidavits/testimony from subscribing witnesses; if witnesses are unavailable, the clerk can accept substitute proof (commonly affidavits describing unavailability plus handwriting proof and other supporting facts).
Use the correct probate pathway: The process differs depending on whether (a) this is original probate in North Carolina, or (b) the will has already been probated elsewhere and a certified probate record can be filed in North Carolina.

What the Statutes Say

N.C. Gen. Stat. § 31-11.6 (Self-proved wills) – Explains how a will can be made self-proved and when an out-of-state self-proved will is treated as self-proved in North Carolina.
N.C. Gen. Stat. § 31-35 (Affidavit of witness as evidence) – Addresses use of affidavits/proofs taken by the clerk when a subscribing witness is unavailable (including being absent beyond North Carolina) in later proceedings.

Analysis

Apply the Rule to the Facts: Here, [DECEDENT] left a will signed in another state, and the will is not self-proving under North Carolina requirements. Because the clerk is requesting sworn affidavits from the original witnesses, the immediate task is to determine whether at least one subscribing witness can provide an affidavit, and if not, whether the witnesses qualify as “unavailable” (for example, because they are out of state) so the will can be proven using alternative affidavits and handwriting proof. Once the clerk admits the will and issues letters, [CLIENT] can open an estate account to handle items like incoming tax documents, an insurance check payable to the estate, and potential reimbursement of funeral expenses from estate funds.

Process & Timing

Who files: The person seeking to be appointed (often the named executor) or another interested person. Where: The Estates Division of the Clerk of Superior Court in the North Carolina county with proper venue. What: The application to probate the will and be appointed, plus the original will and supporting affidavits (commonly the AOC affidavit forms used for subscribing witnesses or for unavailable witnesses). When: As soon as practical after death, especially if estate funds must be accessed to deposit checks or reimburse expenses.
If witnesses are available: Obtain sworn affidavits from the subscribing witnesses in the form the clerk will accept. If the witnesses live out of state, they can usually sign before an officer authorized to administer oaths where they live (such as a notary), but the affidavit must still satisfy what the North Carolina clerk requires.
If witnesses are not available: File affidavits establishing unavailability and provide substitute proof (commonly handwriting proof for the testator and one or more witnesses, plus any other supporting facts the clerk requests). The clerk may request additional proof depending on the circumstances and the county’s local practice.

Exceptions & Pitfalls

Assuming “out of state” means “can’t be used”: A witness being out of North Carolina often supports a finding that the witness is unavailable, which can open the door to alternative proof rather than stopping probate.
Using the wrong proof method: If one witness is available, the clerk may require that witness’s affidavit plus handwriting proof and other supporting proof. If no witnesses are available, the clerk may require handwriting proof for multiple witness signatures plus the testator’s signature and additional evidence of due execution.
Not checking whether the will was already probated elsewhere: If the will has already been probated in another state, it may be possible to proceed in North Carolina using certified copies of the will and the other state’s probate record, rather than trying to recreate witness testimony from scratch.
Delays that create real-world problems: Even when a will is ultimately accepted, delays can complicate handling insurance proceeds, time-sensitive mail, and reimbursement of funeral expenses. Getting the correct affidavits and supporting proof assembled early often prevents repeated trips to the clerk’s office.

Conclusion

In North Carolina, when an out-of-state will is not self-proving, the Clerk of Superior Court usually requires proof of the will through subscribing-witness affidavits. If the witnesses cannot provide affidavits because they are out of state or otherwise unavailable, North Carolina law allows probate using alternative proof, commonly including affidavits explaining unavailability and proof of handwriting plus other supporting evidence the clerk finds sufficient. The next step is to file the probate application and the correct supporting affidavits with the Clerk of Superior Court (Estates) so letters can be issued.

Talk to a Probate Attorney

If a North Carolina clerk is requiring witness affidavits for an out-of-state will that is not self-proving, our firm has experienced attorneys who can help identify the right proof method, prepare the supporting affidavits, and move the estate toward appointment so estate funds can be handled properly. 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.