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 permits probate through handwriting proof and other evidence establishing genuineness and due execution.
Key Requirements
- Identify the type of will proof available: Determine whether the will is self-proved through a notarized self-proving affidavit or needs witness and handwriting proof.
- Show witness unavailability: Establish that the witnesses cannot provide testimony. The death of a witness qualifies as unavailability.
- Provide substitute proof of execution: If no witness is available, provide proof of the handwriting of the testator and at least two attesting witnesses, plus other circumstances that satisfy the clerk that the will is genuine and was properly executed.
What the Statutes Say
- N.C. Gen. Stat. § 31-11.6 (How attested wills may be made self-proved) – Allows an attested will to be made self-proved through the testator’s acknowledgment and the witnesses’ sworn statements before an authorized officer. The witnesses’ sworn statements are accepted as if taken before the court.
- N.C. Gen. Stat. § 28A-2A-8 (Manner of probate of attested written will) – Provides the methods for probating an attested written will, including self-proof and the handwriting and circumstantial proof required when one or all attesting witnesses are unavailable.
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 whether the will is self-proved and, if not, whether the clerk can be satisfied through handwriting proof and other evidence that the will is genuine and was properly executed. When no attesting witness is available, the required proof generally includes the handwriting of at least two attesting witnesses, the handwriting of the testator unless the testator signed by mark, and other circumstances showing genuineness and due execution.
Process & Timing
- File in the proper county: The person named as executor may initiate probate after the testator’s death. If the named executor does not apply within 60 days, a devisee or other interested person may generally apply after giving the required notice. File with the Clerk of Superior Court in the North Carolina county where the decedent was domiciled.
- Submit the will and supporting paperwork: File the original will and the standard estate-opening paperwork. AOC-E-301, “Affidavits for Probate of Will—Witness(es) Not Available,” addresses witness unavailability and handwriting proof. AOC-E-300 is generally used for an available subscribing witness.
- Provide the applicable proof: If the will is self-proved, the clerk generally reviews the self-proving affidavit and officer’s certificate without requiring the witnesses to be located. If the will is not self-proved and both witnesses are deceased, provide proof of the handwriting of at least two attesting witnesses and the testator, unless the testator signed by mark, together with other evidence supporting proper execution.
- Obtain the clerk’s decision: If the clerk is satisfied and the applicant qualifies, the clerk may admit the will to probate and issue Letters Testamentary. The personal representative can then collect assets, address claims and expenses, and ultimately distribute the estate.
Exceptions & Pitfalls
- Self-proved versus not self-proved: Many older wills are not self-proved. A notarized self-proving affidavit, often located at the end of the will, usually eliminates the need to locate the attesting witnesses.
- Handwriting proof must have a reliable basis: The affidavits should come from people genuinely familiar with the handwriting. A statement based only on a belief that a signature looks correct may not satisfy the clerk.
- Unavailability must be addressed: The probate paperwork should state why each witness is unavailable. Death qualifies, but failing to document it can lead to a request for additional information.
- Other proof is required: The clerk must also be satisfied by other circumstances that the will is genuine and was properly executed. An attestation clause may help establish the formalities followed when the will was signed.
- Alternative testimony may be possible: If the ordinarily required evidence is unavoidably lacking or inadequate, due execution may be established through other competent witnesses who can testify to the necessary facts.
- Contested estates may require a different path: If there is a serious dispute about validity, probate in solemn form may be considered. A caveat can transfer the validity dispute to 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. A self-proved will generally does not require witness testimony. Otherwise, the key threshold is proof of the handwriting of at least two unavailable witnesses and the testator, unless the testator signed by mark, plus other evidence of proper execution. The next step is to file the will and the appropriate witness-unavailability affidavits with the Clerk of Superior Court.
Talk to a Probate Attorney
If a North Carolina will must be probated but its witnesses are deceased or otherwise unavailable, contact our probate attorneys at (919) 341-7055 to request a free case evaluation and discuss the affidavits and other proof the clerk may require.
