Short Answer

In North Carolina, you can prove (authenticate) a will before the Clerk of Superior Court using sworn affidavits from the subscribing witnesses when the will is not self-proved. If a relative is withholding the will or refusing to move probate forward, an interested person (like a devisee) may (a) apply to probate the will after the statutory waiting period and (b) ask the clerk to order the person holding the will to produce it. Deed issues tied to abuse of a power of attorney are handled in Superior Court.

Understanding the Problem

You want to know whether you can move probate forward by using witness affidavits to authenticate a will in North Carolina when a relative will not cooperate. You are a devisee under the will and need the Clerk of Superior Court to accept the will for probate so the estate can be opened. A key fact: the relative used a power of attorney to transfer the decedent’s house into their name before death.

Apply the Law

North Carolina allows two main paths to prove a will: (1) admission of a self-proved will without further testimony, and (2) proof by witness testimony or affidavits if the will is not self-proved. Probate in common form occurs before the Clerk of Superior Court. If the named executor does not act, a devisee or other interested person can apply to probate the will after statutory notice. When a person withholds a will, the clerk can order production. Witness affidavits may be taken before a notary where the witness is located, including outside North Carolina.

Key Requirements

• Standing as an interested person: A devisee or other party in interest may apply to probate a will if the named executor does not act after the initial period and notice is given.
• Self-proved vs. non-self-proved: A self-proved will is admitted without additional witness proof; otherwise, you must provide witness testimony or affidavits.
• Witness affidavits: If two subscribing witnesses are available, use their affidavits; if fewer are available, add handwriting proof and other evidence sufficient to satisfy the clerk.
• Examination by affidavit: The clerk may accept affidavits taken before a notary or other authorized officer where the witness is located; originals are filed with the clerk.
• Compel production of the will: If someone holds the will and refuses to deliver it, the clerk can summon them to produce it or disclose its whereabouts.
• Separate deed challenge: Any claim to unwind a pre-death deed signed or arranged under a power of attorney belongs in Superior Court (e.g., breach of fiduciary duty, undue influence, constructive trust).

What the Statutes Say

• North Carolina Gen. Stat. § 31-11.6 (Self-proved wills) – A properly self-proved will can be admitted without additional witness testimony.
• North Carolina Gen. Stat. § 28A-2A-8 (Proof of wills) – Sets out acceptable proof, including witness testimony and affidavits when a will is not self-proved.
• North Carolina Gen. Stat. § 28A-2A-16 (Examination of witnesses by affidavit) – Allows taking witness affidavits before a notary where the witness is located.
• North Carolina Gen. Stat. § 28A-2A-4 (Compelling production of a will) – Lets the clerk summon anyone holding a will to produce it or disclose its location.

Analysis

Apply the Rule to the Facts: As a devisee, you may apply to probate the will in common form before the Clerk of Superior Court if the named executor has not acted after the initial period and you give the required notice. If the will is not self-proved, submit subscribing witness affidavits; if one witness is unavailable, add handwriting proof and any other corroborating evidence until the clerk is satisfied. If the relative is withholding the will, ask the clerk to order its production. The deed signed or arranged under a power of attorney must be challenged in a separate Superior Court action.

Process & Timing

1. Who files: A devisee or other interested person. Where: Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: Application for probate (AOC-E-201 if seeking letters, or AOC-E-199 if not), the original will (or proceed to compel production), and witness affidavits (AOC-E-300 if witnesses available; AOC-E-301 if witnesses are unavailable with handwriting affidavits). When: After death; if the executor has not applied within the initial 60 days, give 10 days’ notice and then apply.
2. If the will is withheld, file an application by affidavit asking the clerk to summon the holder to produce the will or state its whereabouts; the clerk issues a summons and sets a return date. The clerk may accept witness affidavits taken before a notary and mailed back to the clerk.
3. Once satisfied, the clerk admits the will in common form and issues a Certificate of Probate (AOC-E-304). If the named executor will not qualify, ask the clerk to deem a renunciation or appoint an administrator c.t.a. Then, to address the house transfer, file a separate Superior Court civil action (e.g., breach of fiduciary duty/constructive fraud under the power of attorney) and record a lis pendens to alert title examiners.

Exceptions & Pitfalls

• If the will is self-proved, you do not need witness affidavits; the clerk can admit it without further proof.
• If only one subscribing witness is available, include handwriting proof for an unavailable witness and for the testator, plus any other credible evidence of due execution.
• The clerk cannot unwind a deed; deed challenges based on power-of-attorney abuse or undue influence must be filed in Superior Court, often with a lis pendens to protect the chain of title.
• Use the correct AOC forms and provide original signatures on the attested will; copies are generally insufficient for original probate.
• Service and notice matter: when compelling production of a will, follow the clerk’s summons procedure and return deadlines.

Talk to a Probate Attorney

If you’re facing a blocked probate and need to prove a will with witness affidavits—or undo a deed signed under a power of attorney—our firm can help you understand your options and timelines. Call us today at +1 (704) 555-0123.

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.