Short Answer

North Carolina does not impose a one-year deadline to start probate. A will can be offered for probate years later, but waiting affects other timelines. After 60 days from death, any interested person may apply to probate the will if the named executor has not. Creditors’ claim deadlines only start after the personal representative is appointed and publishes notice. Real estate transfers by heirs have special rules within the first two years.

Understanding the Problem

You want to know what time limits still matter in North Carolina when more than a year has passed and probate was not opened. This comes up when a spouse dies out of state and you later need ancillary probate in North Carolina to deal with North Carolina-titled assets.

Apply the Law

In North Carolina, the Clerk of Superior Court is the probate judge. There is no general one-year cutoff to offer a will for probate. However, several timelines govern who may step in to start probate, when creditors must file claims, and how transfers of real estate by heirs are treated in the first two years after death. Ancillary probate for a nonresident decedent follows similar rules, with the domiciliary personal representative having preference to serve in North Carolina if they act promptly after notice.

Key Requirements

• No one-year bar: A will may be offered for probate after a year. Exception: oral (nuncupative) wills must be probated within six months.
• 60-day trigger: If the named executor has not applied within 60 days of death, any devisee or other interested person may apply to probate the will upon 10 days’ notice to the named executor.
• Creditor timelines start after letters: Once a personal representative is appointed, they must publish notice to creditors; claims are barred if not presented by the published deadline (at least three months after first publication), with a longer window for creditors who receive mailed notice.
• Two-year real estate rule: Within two years of death, heir/devisee transfers can be vulnerable to estate creditors unless a personal representative joins; after two years, such transfers gain stronger protection.
• Ancillary preference window: In ancillary probate, after the Clerk notifies the domiciliary personal representative, they have 14 days to apply to serve in North Carolina before someone else may be appointed.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-2 (Who may offer a will for probate after 60 days) – Lets an interested person apply if the executor hasn’t within 60 days.
• North Carolina Gen. Stat. § 28A-14-1 (Notice to creditors) – Requires publication and mailed notice after appointment.
• North Carolina Gen. Stat. § 28A-19-3 (Bar of claims) – Bars untimely claims after the published deadline and mailed notice period.
• North Carolina Gen. Stat. § 31-39 (Effect of late probate on title) – Protects lien creditors and purchasers if a will is not probated within two years.

Analysis

Apply the Rule to the Facts: Because your spouse died out of state, you would handle the main (domiciliary) probate there and then open ancillary probate in a North Carolina county where there are North Carolina assets (for example, vehicles). The fact that a year has passed does not bar probate here, but creditor deadlines in North Carolina do not start until a North Carolina personal representative is appointed and publishes notice. The home deeded solely in your name is generally outside the estate; vehicles titled only to your spouse likely require ancillary administration to retitle.

Process & Timing

1. Who files: The domiciliary personal representative, or if they decline, another interested person. Where: Clerk of Superior Court in the North Carolina county where the decedent had property. What: AOC-E-201 (Application for Probate and Letters) and, for an out-of-state will, AOC-E-309 addendum; publish creditor notice and later file AOC-E-307 (Affidavit of Notice). When: After 60 days from death, an interested person may apply if the named executor hasn’t; the domiciliary personal representative has 14 days to claim ancillary appointment after the Clerk’s notice.
2. After letters issue, publish notice to creditors once a week for four consecutive weeks; set the claims deadline at least three months after the first publication. Mail notice to known or reasonably ascertainable creditors; they get 90 days from delivery if that date is later than the published deadline. File the 90-day Inventory and continue administration.
3. Wrap up by paying allowed claims in the statutory order, transferring titles (e.g., vehicle retitling), making distributions, and filing a Final Account for closure.

Exceptions & Pitfalls

• Oral (nuncupative) wills must be probated within six months; most written wills are not time-barred, even after a year.
• Within two years of death, heirs’ or devisees’ transfers of real estate can be void as to estate creditors unless the personal representative joins; after two years, transfers are generally safer against those claims.
• A notarization is not required for a valid North Carolina attested will; however, proof of proper execution is still needed to admit the will.
• For ancillary probate, the domiciliary personal representative has preference to serve in North Carolina if they respond within the Clerk’s 14-day notice window.
• Failing to mail notice to known creditors can extend their time to file, even if the newspaper notice ran.

Talk to a Probate Attorney

If you’re dealing with a delayed probate and North Carolina assets, our firm has experienced attorneys who can help you understand your options and timelines. 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.