Jan152026
Probate Q&A Series

How do I prove a will is valid if I can’t find the witnesses or the notary who signed it? – North Carolina

Short Answer

In North Carolina, a will can often still be admitted to probate even if the subscribing witnesses (and the notary) cannot be located. If the will is “self-proved,” the Clerk of Superior Court can usually probate it without tracking down witnesses. If it is not self-proved, the Clerk may accept sworn affidavits proving the signatures (handwriting) of the testator and witnesses and explaining why the witnesses are unavailable.

Understanding the Problem

Under North Carolina probate practice, the key question is: can a newer will be admitted as valid when the people who signed as witnesses (or the notary who notarized a self-proving affidavit) cannot be found to confirm what happened at signing? This issue commonly comes up when an estate is opened using an older will, and a later “homemade” will surfaces that changes who inherits. The decision point is whether the newer document can be proved to the Clerk of Superior Court well enough to be probated despite missing witnesses or a missing notary.

Apply the Law

North Carolina recognizes different ways to prove a will for probate. The easiest path is a self-proved will, which includes a notarized self-proving affidavit signed by the testator and witnesses. If the will is not self-proved, North Carolina law still allows probate when witnesses are unavailable, but it typically requires affidavits and signature proof (often handwriting proof) that satisfy the Clerk of Superior Court that the will is genuine and was properly executed.

Key Requirements

  • Valid execution (attested will): For a typical typed/written will, the testator must sign (or direct someone to sign in the testator’s presence), and at least two competent witnesses must sign in the testator’s presence. The witnesses do not have to sign in front of each other.
  • Self-proved status (if available): If the will includes a proper self-proving affidavit, the Clerk can usually probate it without locating witnesses because the affidavit substitutes for live testimony.
  • Alternative proof when witnesses are unavailable: If the will is not self-proved and witnesses cannot be found, the Clerk may accept sworn statements showing the witnesses are “unavailable” and proving signatures (commonly by people familiar with the handwriting), plus any other proof the Clerk finds persuasive about genuineness and due execution.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The newer “homemade” will matters only if it can be proved as a valid will under North Carolina’s execution rules. If it is self-proved (it includes the notarized self-proving affidavit), the missing witnesses and missing notary usually do not stop probate because the document itself supplies the proof the Clerk needs. If it is not self-proved, the focus shifts to proving (1) the witnesses are legally “unavailable” and (2) the signatures are genuine—often through affidavits from people who recognize the handwriting—so the Clerk can admit the newer will and the older will can be challenged through the proper probate procedure.

Process & Timing

  1. Who files: Typically, a person named as executor in the newer will or an interested person who wants the newer will recognized. Where: The Clerk of Superior Court (Estates) in the county where the estate is being administered in North Carolina. What: The newer original will (if available) plus the probate application and supporting affidavits required by the Clerk; if witnesses are not available, the filing commonly includes affidavits addressing unavailability and signature/handwriting proof. When: As soon as possible after learning the estate was opened under the older will, because probate steps can move quickly once an executor is appointed.
  2. Proving the will without witnesses: If the will is self-proved, the Clerk typically reviews the self-proving affidavit for compliance and may admit it without witness testimony. If it is not self-proved, the Clerk may require sworn proof of handwriting/signatures and facts showing the witnesses cannot be found (for example, diligent but unsuccessful attempts to locate them).
  3. Challenging the older will: If the estate is already opened under the older will, the next step is usually a formal will-challenge procedure in Superior Court (often called a caveat) to determine which will controls. Evidence gathered to probate the newer will (affidavits, handwriting proof, and circumstances of signing) often becomes important in that dispute.

Exceptions & Pitfalls

  • Notary confusion: A notary is not required to make a will valid in North Carolina; notarization mainly matters for making a will “self-proved.” If the will is not self-proved, the missing notary is usually not the core problem—the missing witness testimony is.
  • “Homemade” does not mean “invalid,” but formalities still matter: If the newer will is typed and only one witness signed (or witnesses did not sign in the testator’s presence), it may fail as an attested will under North Carolina law.
  • Weak handwriting proof: Affidavits should come from people who truly know the testator’s and witnesses’ handwriting (for example, from years of seeing signatures on letters, cards, or business records). Vague statements can lead the Clerk to require more proof.
  • Unavailability must be shown: “Can’t find them” usually needs detail—what steps were taken to locate the witnesses (last known address, phone/email searches, contacting relatives, etc.).
  • Two competing wills raises higher stakes: When an older will is already filed and being used to administer the estate, the newer will often triggers contested probate. In that setting, proof of capacity, undue influence, and authenticity can become central issues. For more on the broader will-contest process, see how to contest a will and what evidence is used to set aside a will.

Conclusion

In North Carolina, a will can often be proved even when the subscribing witnesses or the notary cannot be located. If the will is self-proved under the statute, the Clerk of Superior Court can usually admit it without witness testimony. If it is not self-proved, probate may still be possible through affidavits showing witness unavailability and proving signatures (often by handwriting familiarity) plus other proof that satisfies the Clerk. The next step is to promptly file the newer will with the Clerk of Superior Court handling the estate and request probate based on the appropriate proof.

Talk to a Probate Attorney

If an estate was opened under an older will and a newer will has surfaced but the witnesses or notary cannot be found, a probate dispute can move fast and become procedural quickly. Our firm has experienced attorneys who can help evaluate whether the newer will can be proved and what steps are needed to challenge the current estate opening. 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.

Category: Probate Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.