Jan272026
Probate Q&A Series

What happens if there are issues with the will when we try to probate it? – North Carolina

Short Answer

In North Carolina, “issues with the will” usually mean the Clerk of Superior Court cannot accept the will for routine probate, or an interested person files a formal challenge (a caveat) after the will is admitted in common form. Some problems can be fixed with additional proof (like witness affidavits), while others can push the case into a contested proceeding in Superior Court. A key deadline is that a caveat generally must be filed within three years after the will is probated in common form.

Understanding the Problem

In a North Carolina probate case, what happens if the Clerk of Superior Court raises concerns about whether a will can be admitted to probate, or if an interested person challenges the will’s validity after it is filed? The decision point is whether the problem is a “proof problem” (the will may be valid but needs better evidence to be accepted) or a “validity problem” (someone claims the will should not control the estate). This article explains how those issues typically affect the probate process and what procedural path the estate may follow.

Apply the Law

North Carolina probate usually starts as an ex parte proceeding before the Clerk of Superior Court (often called probate “in common form”). In common form, the will can be admitted without giving advance notice to everyone who might inherit. If the will is admitted, it is treated as valid unless and until an interested person files a caveat (a will contest) within the time allowed. When questions exist about validity and a conclusive ruling is needed up front, North Carolina also allows probate “in solemn form,” which involves formal notice to interested parties and a hearing.

Key Requirements

  • Proper proof to admit the will: The Clerk must have legally acceptable proof that the document qualifies as the decedent’s will (for example, proof of execution and witnesses for an attested will, or proof of handwriting for a holographic will).
  • Standing to challenge: Only an “interested” person (someone whose financial rights are affected by whether the will is valid) can file a caveat to challenge probate.
  • Timely challenge: A caveat generally must be filed within the statutory time window after common-form probate, or the challenge may be barred.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the estate is preparing to start probate and retain counsel. If “issues with the will” come up at filing, the first step is usually determining whether the problem is missing proof (for example, witness information or a self-proving affidavit) versus a dispute about validity (for example, allegations of lack of capacity, undue influence, fraud, mistake, or revocation). If the will is admitted in common form, the estate can still move forward, but the risk window for a caveat remains open for the statutory period.

Process & Timing

  1. Who files: Usually the named executor (or another person with a legal right to present the will). Where: The Clerk of Superior Court in the county where the estate is opened in North Carolina. What: The original will (and any codicils) plus the probate application materials required by that county. When: As soon as practical after death, especially if estate assets need to be accessed or protected.
  2. If the Clerk flags a proof problem: The propounder may need to supply additional evidence (commonly, witness affidavits or other proof of execution). If the will is self-proved, that often streamlines this step because the sworn statements are built into the will package.
  3. If someone challenges validity (caveat): An interested person files a caveat in the estate file. If the dispute cannot be resolved at the Clerk level, the contested matter is typically transferred for court handling consistent with North Carolina caveat procedure, and the estate administration may slow down while the validity question is decided.

Exceptions & Pitfalls

  • “Issue” does not always mean “invalid”: Many probate delays come from proof problems (missing witness information, unclear execution details, or missing self-proving paperwork), not from a will that fails legally.
  • Witness availability can matter: If witnesses have died, become incompetent, or moved out of state, the estate may need to rely on alternative proof methods recognized by North Carolina law. See N.C. Gen. Stat. § 31-35.
  • Common-form probate is not “final” if a caveat is timely: The will can be admitted and letters issued, but a timely caveat can still put validity in dispute and change the administration path.
  • Title and timing risks: Delays in offering a will for probate can create avoidable title complications for real property and can affect protections against certain third-party claims. See N.C. Gen. Stat. § 31-39.
  • When a newer will appears: If a later will is discovered after an earlier document has been probated, the estate may need a proper contested procedure to set aside the earlier probate before the later will can control.

For more on challenges to a will, see contest a will and stop letters testamentary from being issued.

Conclusion

In North Carolina, issues with a will at probate usually lead to one of two outcomes: the Clerk of Superior Court asks for additional proof so the will can be admitted, or an interested person files a caveat to challenge whether the document is the valid last will. Common-form probate can move forward, but a caveat generally must be filed within three years after probate in common form. The next step is to file the will with the Clerk of Superior Court and address any proof requirements promptly.

Talk to a Probate Attorney

If there are concerns about whether a will can be accepted for probate or whether someone may challenge it, our firm has experienced attorneys who can help explain the process, the evidence the Clerk may require, and the timelines that 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.

Category: Probate Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.