How do I probate a will if both witnesses are deceased and no one can sign as a witness? – North Carolina

Short Answer

In North Carolina, a will can still be probated even if both attesting witnesses have died and no one can sign now as a witness. If the will is “self-proved” (it has the notarized self-proving affidavit), the Clerk of Superior Court can usually admit it to probate without locating witnesses. If it is not self-proved and no attesting witness is available, the clerk can accept affidavits proving the handwriting of the witnesses and the testator, plus any other proof that satisfies the clerk that the will is genuine and was properly signed.

Understanding the Problem

In North Carolina probate, the key question is what happens when a will needs to be admitted by the Clerk of Superior Court, but the people who signed it as witnesses are no longer alive and therefore cannot provide the usual witness affidavit. The issue is not whether someone can “sign as a witness” now, but what alternative proof North Carolina allows to show that the will was properly executed when it was signed. The answer depends mainly on whether the will includes a self-proving affidavit and, if not, what other proof can be provided to the clerk to replace living witness testimony.

Apply the Law

North Carolina typically probates most wills in an ex parte proceeding (often called common form probate) before the Clerk of Superior Court. When a will is offered for probate, the clerk needs proof that the document is the decedent’s will and that it was properly executed. If the will is self-proved, the self-proving affidavit generally replaces the need to locate witnesses. If the will is not self-proved and the attesting witnesses are unavailable (including because they are deceased), North Carolina law allows probate based on handwriting proof and other evidence that satisfies the clerk about genuineness and due execution.

Key Requirements

Identify the type of will proof available: Determine whether the will is self-proved (has a notarized self-proving affidavit attached) or needs witness/handwriting proof.
Show witness unavailability: Establish that the witnesses cannot provide testimony (including because they are deceased), which triggers the alternative proof rules.
Provide substitute proof of execution: If no witness is available, provide affidavits proving the handwriting of the testator and at least two witnesses, plus any additional proof the clerk finds reliable (often including a strong attestation clause in the will).

What the Statutes Say

N.C. Gen. Stat. § 31-11.6 (Self-proved wills) – Allows a will to be made self-proved through sworn statements before an authorized officer, so witness testimony does not have to be obtained later.
N.C. Gen. Stat. § 31-35 (Affidavit of witness as evidence) – Addresses how witness affidavits taken during probate in common form can later serve as evidence if a witness later dies or becomes unavailable in a will contest.

Analysis

Apply the Rule to the Facts: If both witnesses are deceased, no one can sign now as a substitute witness to “fix” the will. Instead, the path to probate turns on (1) whether the will is self-proved and, if not, (2) whether the clerk can be satisfied through handwriting affidavits and other evidence that the will is genuine and was properly executed. When no attesting witness is available, North Carolina procedure typically focuses on affidavits from people familiar with the handwriting of the testator and the witnesses, together with any other reliable proof the clerk requests.

Process & Timing

Who files: The person named as executor in the will (or another person with a legal right to apply if the named executor cannot serve). Where: The Clerk of Superior Court (Estates) in the county where the decedent was domiciled in North Carolina. What: File the original will and the standard estate opening paperwork, plus the appropriate AOC affidavit for witness proof (commonly AOC-E-301 for “Witness(es) Not Available,” and AOC-E-300 is typically used only when witnesses are available). When: As soon as reasonably possible after death, especially if estate assets need access, bills must be paid, or real estate may need to be sold.
Submit substitute proof instead of living witness affidavits: If the will is self-proved, the clerk generally reviews the notary certificate and self-proving affidavit and may not require witness location. If the will is not self-proved and both witnesses are deceased, the clerk typically expects affidavits proving (a) the handwriting of at least two attesting witnesses and (b) the handwriting of the testator (unless the testator signed by mark), plus additional proof that supports proper execution.
Clerk’s review and admission to probate: If the clerk is satisfied, the clerk admits the will and issues letters (usually Letters Testamentary) to the personal representative. Once letters issue, the estate administration process can move forward (collecting assets, paying claims, and eventually distributing to beneficiaries).

Exceptions & Pitfalls

Self-proved vs. not self-proved: Many older wills are not self-proved. If the will has a separate notarized “self-proving affidavit” attached (often at the end of the document), that usually changes the proof needed and can eliminate the need to track down witnesses.
Handwriting proof must be credible: The clerk typically expects affidavits from people who genuinely know the handwriting. Weak “I think it looks like their signature” statements, or affidavits from people with no real basis, can delay probate.
Unavailability must be addressed: The probate paperwork commonly requires a statement that the witness is unavailable (death qualifies). Missing that step can result in rejection or a request for more information.
Other proof may be needed: When no witnesses are available, the clerk may look for other indicators of proper execution, such as a well-drafted attestation clause or other reliable circumstances showing the will was signed with the required formalities.
Contested estates may require a different path: If there is a serious dispute about validity, a petition for probate in solemn form (with formal notice and a hearing) may be considered, and a caveat can shift the dispute into Superior Court.

Conclusion

In North Carolina, a will can still be admitted to probate even if both attesting witnesses are deceased, and no one can sign now as a replacement witness. If the will is self-proved, the Clerk of Superior Court can usually accept it without witness testimony. If the will is not self-proved and no witness is available, the clerk may accept affidavits proving the handwriting of at least two witnesses and the testator (unless signed by mark), plus other proof the clerk finds reliable. The next step is to file the original will and the “witness not available” affidavit with the Clerk of Superior Court promptly.

Talk to a Probate Attorney

If a North Carolina will must be probated but the witnesses are deceased or otherwise unavailable, our firm has experienced attorneys who can help gather the right affidavits, present the proof the Clerk of Superior Court typically expects, and keep the estate on track. 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.