What happens if one of the witnesses to a will has passed away before probate? NC

Understanding the Problem

In North Carolina, the person offering a will for probate must give the Clerk of Superior Court enough evidence to establish that the testator properly signed and witnessed the will. The decision point is whether the clerk can admit the will and issue letters when one of its two witnesses has died. The answer depends mainly on whether the will contains a valid self-proving affidavit and, if not, whether the required substitute proof is available.

Apply the Law

North Carolina generally requires an attested written will to bear the testator’s signature and the signatures of at least two competent witnesses. The testator must sign or acknowledge the signature to the witnesses, and each witness must sign in the testator’s presence. A witness does not have to remain alive through probate; the witness only needed to satisfy the legal requirements when the will was executed.

The Clerk of Superior Court acts as the probate judge. If the will includes a valid self-proving affidavit, the clerk may ordinarily admit it without locating either witness. For a will that is not self-proved, a deceased witness counts as unavailable. When one witness remains available, North Carolina law permits probate through the surviving witness’s testimony plus substitute evidence concerning the signatures and execution of the will.

Key Requirements

Valid original execution: The testator must have signed or acknowledged the will, and at least two competent witnesses must have signed in the testator’s presence.
Proof from the available witness: If the will is not self-proved, the surviving witness normally provides sworn testimony about how the will was signed. The clerk may accept a properly completed notarized affidavit.
Proof concerning the unavailable witness: The applicant must establish that the other witness is unavailable because of death and provide proof from someone familiar with that witness’s handwriting.
Proof of the testator’s signature: Someone familiar with the testator’s handwriting must identify the testator’s signature, unless the testator signed by mark.
Other satisfactory evidence: The applicant must provide other evidence satisfactory to the clerk showing that the document is genuine and was properly executed.

What the Statutes Say

N.C. Gen. Stat. § 31-3.3 (Attested Written Wills) - Requires the testator’s signature and attestation by at least two competent witnesses.
N.C. Gen. Stat. § 31-11.6 (Self-Proved Wills) - Allows a properly self-proved will to supply the sworn evidence normally obtained from its witnesses.
N.C. Gen. Stat. § 28A-2A-8 (Proof of an Attested Will) - Provides the proof required when one or more attesting witnesses are unavailable.
N.C. Gen. Stat. § 28A-2A-16 (Witness Examination by Affidavit) - Permits witness testimony by affidavit before a notary or another person authorized to administer oaths.
N.C. Gen. Stat. § 7A-241 (Probate Jurisdiction) - Places original probate jurisdiction in the Superior Court Division, commonly exercised by the Clerk of Superior Court.

Analysis

Apply the Rule to the Facts: The will reportedly has two witness signatures, but one witness has died. If the will is not self-proved, a notarized affidavit from the surviving witness can satisfy the available-witness requirement, but that document does not complete the proof by itself. The applicant must also provide proof identifying the deceased witness’s handwriting, proof identifying the testator’s handwriting unless the testator signed by mark, and other evidence satisfactory to the clerk concerning genuineness and proper execution.

The family relationship between the witnesses and the person handling the estate does not, by itself, make the will invalid. However, whether either witness or the witness’s spouse received a gift under the will requires separate review because North Carolina law can affect that gift when the will lacks two other disinterested witnesses.

Process & Timing

Who files: The person offering the will for probate. Where: The Estates Division of the Clerk of Superior Court in the proper North Carolina county, usually the county where the decedent was domiciled. What: The original will, the estate application, and any requested witness proof. The clerk commonly uses AOC-E-300, Affidavit of Subscribing Witnesses for Probate of Will/Codicil to Will, for the surviving witness and AOC-E-301, Affidavits for Probate of Will—Witness(es) Not Available, for unavailability and handwriting proof. When: Submit the requested proof promptly because the clerk may withhold probate and letters until the record is complete.
Complete the affidavits: The surviving witness signs the requested statement under oath before a notary. A person with genuine familiarity with the deceased witness’s handwriting may complete the handwriting portion. The clerk may prefer a different person to identify the testator’s signature.
Deliver the originals: Follow the county clerk’s instructions for transmitting notarized affidavits. North Carolina procedure generally calls for the person administering the oath to transmit the completed witness affidavit to the clerk. After reviewing the will and supporting proof, the clerk decides whether to admit the will and issue the appropriate letters.

A surviving witness may generally sign a probate affidavit after the testator’s death. More information about that step appears in this discussion of a notarized witness statement after death.

Exceptions & Pitfalls

Overlooking a self-proving affidavit: If the will already contains a compliant self-proving section, additional witness affidavits may be unnecessary.
Submitting only the surviving witness’s affidavit: For a non-self-proved will with one unavailable witness, the clerk requires handwriting proof and other satisfactory evidence in addition to the surviving witness’s testimony.
Using a person unfamiliar with the handwriting: The person identifying a signature must have a reliable basis for recognizing that person’s handwriting. Merely seeing the signature for the first time on the will is not enough.
Using the wrong document: A general notarized statement may omit facts the clerk must find. Using the clerk-approved AOC forms reduces that risk.
Ignoring transmission instructions: The notary or other officer may need to send the affidavit directly to the Clerk of Superior Court. Local filing and electronic-submission practices can vary.
Interested-witness concerns: A witness who received a benefit under the will may still testify, but the gift to that witness or the witness’s spouse may be affected under N.C. Gen. Stat. § 31-10.

Conclusion

The death of one witness before probate does not automatically invalidate a North Carolina will. A self-proved will usually needs no new witness evidence. For a non-self-proved will, the surviving witness’s notarized testimony must be supported by proof of the deceased witness’s handwriting, proof of the testator’s handwriting unless the testator signed by mark, and other evidence satisfactory to the clerk concerning genuineness and proper execution. The next step is to file the clerk-requested AOC-E-300 and AOC-E-301 materials with the proper Clerk of Superior Court promptly.

Talk to a Probate Attorney

If a deceased witness is delaying probate or the issuance of letters, our firm has experienced attorneys who can help explain the required affidavits, handwriting proof, and filing process. 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 a specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is a deadline, act promptly and speak with a licensed North Carolina attorney.