What is the difference between common and solemn form probate in North Carolina?

Difference Between Common and Solemn Form Probate in North Carolina

Detailed Answer

North Carolina recognizes two ways to prove a will before the Clerk of Superior Court: probate in common form and probate in solemn form. Each option affects how quickly the estate can move forward, how much notice is required, and whether the will can later be challenged.

1. Probate in Common Form – Quick but Vulnerable

• Statute: N.C. Gen. Stat. § 31-18
• Procedure: The clerk reviews the original will, witness affidavits, and a sworn application from the proposed personal representative. No formal hearing or notice to heirs is required.
• Speed: Because notice is not mandatory, the clerk can admit the will the same day the papers are filed.
• Risk of Later Challenge: Any interested person has three years after probate in common form to file a caveat (will contest) under N.C. Gen. Stat. § 31-32. If a caveat is filed, estate administration pauses until the Superior Court resolves the dispute.
• When Used: Most small or uncontested estates choose this option to begin collecting assets and paying bills immediately.

2. Probate in Solemn Form – Deliberate and Final

• Statute: N.C. Gen. Stat. § 31-20
• Procedure: The petitioner files a sworn petition and obtains the clerk’s summons to all heirs, beneficiaries, and other interested parties. A formal court hearing follows where witnesses may testify about the will’s execution and the decedent’s capacity.
• Effect of Notice: Because everyone entitled to inherit receives notice and a chance to object, the clerk’s order admitting the will is conclusive. No one who was properly served may later file a caveat based on grounds they could have raised at the hearing.
• Speed: Serving notice and scheduling a hearing typically adds weeks to months before the estate can begin.
• When Used: Useful when family conflict is likely, large assets are at stake, or the personal representative wants certainty before selling real estate or distributing property.

3. Key Differences Side-by-Side

4. Converting from Common to Solemn Form

If an estate started in common form becomes contentious, the personal representative—or any interested party—may petition the clerk to reopen probate in solemn form. This triggers notice and a formal hearing, bringing finality before distribution.

5. Hypothetical Example

Scenario: Alice dies in Wake County leaving a will that splits her home equally between her two sons. One son questions the signature and threatens to sue.

Choice: Because conflict is evident, the nominated executor files for probate in solemn form. All heirs receive formal notice. At the hearing, the subscribing witnesses testify that Alice signed while of sound mind. The clerk admits the will, and the statute bars further caveats from the notified son. The executor can now sell the house and distribute proceeds without fear of later attack.

Helpful Hints

1. Ask the clerk’s office which forms correspond to each probate type; using the wrong form can delay your filing.
2. Gather witness addresses early. You may need them for affidavits (common form) or subpoenas (solemn form).
3. Even after common-form probate, communicate with heirs. Transparency discourages caveats.
4. Consider solemn-form probate if the will changes a prior plan, cuts out heirs, or was signed shortly before death.
5. The three-year caveat window runs from the date the will is admitted, not the date of death.
6. Real property cannot be safely sold until probate is final; title companies often ask whether a caveat period has expired or solemn-form probate occurred.

Need guidance choosing the right probate path? Our North Carolina probate team has years of experience guiding families through both common and solemn form filings. Call us today at (919) 341-7055 for a confidential consultation.