If I file the older will first, what happens if someone later files a different will from right before the person died? – North Carolina

Short Answer

In North Carolina, if an older will is admitted to probate first and someone later produces a different will, the later will does not automatically “replace” the first one. The dispute usually shifts into a will contest (called a caveat) handled through the Clerk of Superior Court and then Superior Court, where the court decides which document (if any) is the valid last will. Timing matters: interested people generally have up to three years after probate in common form to file a caveat, and a later-discovered will should be raised promptly so the estate is not administered under the wrong document.

Understanding the Problem

In North Carolina probate, a common question is: can an older will be filed and opened first, and then later a different will signed closer to death is brought to the Clerk of Superior Court. The decision point is whether the later document is treated as the decedent’s true last will, which can change who inherits and who serves as executor. This issue often comes up when family members disagree about capacity, undue influence, or whether the later document should control.

Apply the Law

North Carolina probate usually starts with the Clerk of Superior Court admitting a will to probate (often in “common form,” which is an administrative probate that can later be challenged). If another will is later offered after a will has already been admitted in common form, the clerk generally does not simply undo the earlier probate on request. Instead, an “interested person” typically must use the caveat process to put the validity of the competing documents before the court, and the Superior Court ultimately decides which script is the valid will (or whether there is no valid will).

Key Requirements

Standing (an “interested person”): The person raising the issue must have a real stake in the estate (for example, an heir under intestacy or a beneficiary under one of the documents).
Proper procedure (caveat): When wills conflict, the usual path is a caveat proceeding so the court can decide whether the offered document is valid and whether another script is the true will.
Timely action: A caveat must be filed within the statutory time window after probate in common form (with limited extensions for minors and certain disabilities).

What the Statutes Say

N.C. Gen. Stat. § 31-32 (Filing of caveat) – Allows an interested person to file a caveat at probate in common form or within three years afterward (with limited extensions for minors and certain disabilities), and limits later caveats after probate in solemn form.
N.C. Gen. Stat. § 31-39 (Probate necessary to pass title) – Explains why offering a will for probate matters for passing title and provides timing protections for lien creditors and purchasers if a will is not timely probated or offered for probate.
N.C. Gen. Stat. § 31-41 (Will relates to death of testator) – States the general rule that a will is construed to speak as of the testator’s death unless the will shows a different intent.

Analysis

Apply the Rule to the Facts: The facts describe two competing wills: an older will in hand and a later will signed shortly before death, with concerns about undue influence and a non-family executor named in the later document. If the older will is filed first and admitted in common form, and someone later produces the later will, the clerk typically will not just “swap” wills administratively; the dispute usually must be addressed through a caveat so the court can decide which will is valid. Because multiple scripts may exist, the safer practice is to bring all known will documents into the same dispute so the court resolves the entire “which will controls” question in one proceeding.

Process & Timing

Who files: Usually the person with the will (or a nominated executor) starts the estate by applying to open the estate. Where: The Clerk of Superior Court (Estates) in the county with proper venue in North Carolina. What: The original will is typically submitted for probate; the clerk’s estate intake forms vary by situation and county. When: If a will is going to control title and administration, it should be offered for probate promptly; disputes should be raised early to avoid administration under the wrong document.
If a different will appears later: The person offering the later will (or another interested person) typically must trigger a caveat process to challenge the will already admitted and to put the competing will(s) before the court for a single determination of which document is the valid will.
How the dispute gets decided: Once a caveat is filed, the matter proceeds as a will contest in Superior Court, and the result can lead to probate in solemn form based on the court’s judgment.

Exceptions & Pitfalls

Probate in solemn form can cut off later challenges: If a will is probated in solemn form with proper service, people who were properly served are generally barred from later filing a caveat. This is one reason notice and service details matter.
Multiple wills should be addressed together: A common pitfall is fighting about Will A, winning or losing, and only then learning that Will B exists. North Carolina practice strongly favors putting all known scripts before the court in the caveat so the jury/court answers the full “which will (if any) is valid” question.
Winning a challenge may not restore the older will automatically: If the later will is set aside but the older will is not established as valid in the same proceeding, the estate can end up being administered as if there is no will (intestacy). That can produce an outcome no one intended.
Revocation and “revival” traps: If the later will revoked the older will, setting aside or revoking the later will does not automatically bring the older will back. North Carolina law can require a proper re-execution or other steps to revive a revoked will, depending on the circumstances.
Power of attorney issues are a separate track: Concerns about a power of attorney (capacity, dementia, undue influence, or misuse of authority) may require a separate proceeding or claims for an accounting or fiduciary misconduct. Those issues can overlap with a will contest but do not automatically decide which will is valid.

Conclusion

In North Carolina, filing an older will first does not prevent someone from later producing a different will signed closer to death. If competing wills exist, the dispute usually must be resolved through a caveat so the court can decide which document is the valid last will (or whether there is no valid will). The key deadline is that an interested person generally has three years after probate in common form to file a caveat. The most important next step is to file a caveat in the estate file with the Clerk of Superior Court within that time window.

Talk to a Probate Attorney

If a family is dealing with competing wills or concerns about undue influence close to the end of life, our firm has experienced attorneys who can help explain the caveat process, what must be filed, and what deadlines matter. 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.