Short Answer

In North Carolina, you can file a petition to probate a will in solemn form, which gives notice to all interested parties and results in a binding decision. If the will is “self‑proved” under state law, the clerk may admit it without live witness testimony. If it is not self‑proved, you can still proceed without locating witnesses by using alternative proof, such as handwriting affidavits and other competent evidence authorized by statute. If anyone contests, the case moves to superior court for a caveat trial.

How North Carolina Law Applies

Probate in solemn form is a formal court process with service of process on heirs and beneficiaries; it produces a conclusive ruling on the will’s validity for those who were served. A leading North Carolina practice guide explains that a will that is self‑proved (with the testator’s acknowledgment and witness affidavits before an authorized officer) may be admitted without additional testimony from witnesses. When a will is not self‑proved, North Carolina statutes allow the clerk to accept alternative proof if witnesses are unavailable, including handwriting affidavits and other competent evidence showing due execution. The 2024 NC Clerks Manual and the North Carolina Estate Administration Manual both outline these options (Clerks Manual, Section 2‑6, pp. 71–76, 111–115; Estate Administration Manual, ch. V, pp. V‑6–V‑9). The Fiduciary Litigation Manual details the estate‑proceeding steps, service, and response deadlines (ch. I, pp. 53–55; ch. VIII, pp. 256–258).

What this means in practice: if the will has a proper self‑proving affidavit, you generally do not need to track down the attesting witnesses. If it is not self‑proved, you can still avoid locating them by showing they are “unavailable” (for example, out of state or cannot be found) and submitting handwriting affidavits and any other reliable proof of genuineness and due execution. If someone objects, the matter is transferred to superior court for a jury determination (a caveat).

Key Requirements

• Eligible petitioner: the named executor, a devisee, or another interested person may petition for probate in solemn form.
• Valid execution: the will must meet North Carolina’s execution requirements for attested wills (testator’s signature and two competent witnesses).
• Self‑proved option: if the will is self‑proved under the statute, no additional witness testimony is required.
• Alternative proof if not self‑proved: if witnesses are unavailable, provide handwriting proof and other competent evidence of due execution.
• Service and parties: all interested parties (typically heirs and beneficiaries) must be served with an estate proceeding summons; they get 20 days to respond.
• Military‑service checks: file required affidavits regarding non‑appearing respondents under servicemember relief laws.

Process & Timing

1. Review the will for a self‑proving affidavit. If present and compliant, plan to rely on it as proof of execution.
2. File a verified petition for probate in solemn form with the clerk of superior court in the proper county. There is no standard AOC petition for this; include the will and identify all interested parties.
3. Obtain and serve an Estate Proceeding Summons (AOC‑E‑102) with the petition on all respondents under Rule 4. Respondents have 20 days to answer; limited extensions may be granted.
4. After the response period, the clerk schedules a hearing and gives notice. Bring proof of execution: (a) the self‑proving affidavit (if applicable), or (b) witness testimony or affidavits. If witnesses are unavailable, submit handwriting affidavits (AOC‑E‑301) and any other competent evidence. If one witness is available, use AOC‑E‑300 for that witness plus handwriting proof for an unavailable witness and the testator.
5. If uncontested and the clerk is satisfied, the clerk admits the will and issues a Certificate of Probate (AOC‑E‑304). The clerk then mails notices to known beneficiaries (AOC‑E‑405).
6. If any party files a caveat or raises devisavit vel non at the hearing, the clerk transfers the case to superior court for trial.

What the Statutes Say

• Probate in solemn form by petition — N.C. Gen. Stat. § 28A‑2A‑7
• Estate proceedings; summons, service, deadlines — N.C. Gen. Stat. § 28A‑2‑6
• Self‑proving wills — N.C. Gen. Stat. § 31‑11.6
• Execution of attested will (two witnesses) — N.C. Gen. Stat. § 31‑3.3
• Proof of will; witnesses unavailable; handwriting proof — N.C. Gen. Stat. § 28A‑2A‑8
• Taking proof by affidavit or examination — N.C. Gen. Stat. § 28A‑2A‑16
• Caveats; contesting a will — N.C. Gen. Stat. § 31‑32
• Notice to beneficiaries after probate — N.C. Gen. Stat. § 28A‑2A‑3

Exceptions & Pitfalls

• Self‑proving defects: if the notary certificate or form does not meet § 31‑11.6, the will may not be treated as self‑proved; be ready with alternative proof.
• Unavailability matters: you must show why a subscribing witness is “unavailable” (e.g., deceased, out of state, cannot be found) before relying on handwriting proof.
• Who is bound: solemn‑form probate binds only interested parties who were properly served; missing a necessary party can leave room for a later caveat.
• Contests transfer: if an issue of devisavit vel non is raised, the clerk must transfer the case to superior court for a caveat trial.
• Original signatures: the original will must contain the testator’s and witnesses’ original signatures (not copies) unless you are pursuing a separate lost‑will proceeding.

Helpful Hints

• Scan the last page for a self‑proving affidavit; it often appears as a notarized paragraph signed by the testator and both witnesses.
• If the will is not self‑proved, use AOC‑E‑300 (subscribing witness affidavit) and AOC‑E‑301 (witness unavailable/handwriting affidavits) to streamline proof.
• Gather mailing addresses for all heirs and beneficiaries early; service on every interested party is required in solemn‑form probate.
• Ask the clerk’s office about local preferences (for example, whether they prefer live testimony or affidavits for handwriting proof).
• For future planning, consider “living probate” during the testator’s lifetime to lock in validity and reduce post‑death disputes.

Sources & References

• 2024 North Carolina Clerks Manual, Section 2‑6 (Probate), pp. 71–76, 104–116 (University of North Carolina School of Government).
• North Carolina Estate Administration Manual, Supplemented 10th Ed. (2024), ch. V, pp. V‑5–V‑15; ch. IV, pp. IV‑143–IV‑158 (North Carolina Bar Association CLE).
• North Carolina Fiduciary Litigation Manual (2022), ch. I, pp. 53–55; ch. VIII (Living Probate), pp. 254–263 (North Carolina Bar Association CLE).

Disclaimer: This article is general information about North Carolina law, not legal advice. Reading it does not create an attorney‑client relationship.

Talk to a Probate Attorney

If you’re dealing with a will that needs to be validated in solemn form and you’d prefer not to track down witnesses, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.