How to Handle an Unsigned Will Amendment and Required Probate for Non-Probate and Out-of-State Assets in North Carolina
Detailed Answer
When someone creates a will amendment (also called a codicil) but fails to sign it correctly, the amendment has no legal force in North Carolina. Under N.C. Gen. Stat. § 31-4, a valid codicil must bear the testator’s signature and the signatures of two competent witnesses present at the same time. Without proper execution, the original will controls distribution.
If you find an improperly executed amendment, you must probabe the original will as written. To begin probate, file the will and a petition with the clerk of superior court in the county where the decedent lived. The court issues Letters Testamentary to your personal representative once it confirms the will’s validity. See N.C. Gen. Stat. § 28A-6-2 for general probate procedures.
Next, identify assets that pass outside probate—so-called non-probate assets. These include accounts held in joint tenancy, payable-on-death designations, life insurance, and retirement plans. The personal representative need not administer these through the probate estate. Instead, beneficiaries file appropriate claim or transfer forms with the account custodian or insurer.
Finally, address any out-of-state real or personal property. Real estate located in another state usually requires ancillary probate in that jurisdiction. You first obtain Letters Testamentary in North Carolina, then submit them to the foreign court. The ancillary proceeding ensures the property transfers under North Carolina law but under that state’s local rules.
For small estates of personal property outside North Carolina that do not exceed $20,000, you may qualify for summary administration under N.C. Gen. Stat. § 28A-19-1. This streamlined process avoids full ancillary probate. You file a verification of small estate, a proposed order, and any required affidavits. The clerk can then release the assets to the named heirs or devisees.
Key Steps to Handle Unsigned Will Amendments and Probate Non-Probate or Out-of-State Assets
- Review the amendment for proper execution under N.C. Gen. Stat. § 31-4.
- If the amendment is invalid, probate the original will in the home county.
- Obtain Letters Testamentary by filing a petition and certified death certificate with the clerk of superior court.
- Inventory all assets, distinguishing probate from non-probate items.
- Transfer non-probate assets via beneficiary or joint-tenant forms; no court action needed.
- Identify any out-of-state property and consult local rules for ancillary probate.
- File Letters Testamentary in the foreign state to initiate ancillary administration.
- For small personal property estates under $20,000 outside North Carolina, consider summary administration under N.C. Gen. Stat. § 28A-19-1.
- Keep detailed records of every filing, bill, and distribution.
- Consult an attorney to ensure you meet all deadlines and follow court rules.
Handling an unsigned will amendment and managing non-probate or foreign assets can prove complex. Pierce Law Group’s probate attorneys have guided many families through these steps. To discuss your situation, email us at intake@piercelaw.com or call (919) 341-7055.
