Short Answer

In North Carolina, you file the executor’s oath or affirmation with the Clerk of Superior Court at the time you qualify for letters; the clerk will not issue letters until your signed oath is on file. Affidavits of subscribing witnesses are filed when the will is offered for probate if the will is not self-proved; if the will is self-proved, witness affidavits are usually unnecessary.

Understanding the Problem

You’re asking, as the named executor in North Carolina, when and how to submit two items so you can move forward: (1) your oath or affirmation to serve and (2) affidavits from the will’s witnesses if needed. Here, the will was executed outside North Carolina and you also expect to appoint a resident process agent before receiving letters.

Apply the Law

North Carolina requires two distinct filings at different stages. First, when a will is offered for probate, the clerk must have proper proof of the will. If the will is not self-proved, the clerk will require affidavits of subscribing witnesses (or alternate proof if a witness is unavailable). Second, before letters are issued, the personal representative must sign and file an oath or affirmation with the clerk; nonresidents must also file a resident process agent appointment before letters can issue.

Key Requirements

• Proving the will: File the will for probate with the Clerk of Superior Court. If it is self-proved, no subscribing-witness affidavits are typically required. If not, submit affidavits from the witnesses (or acceptable alternate proof if a witness is unavailable).
• Affidavits of subscribing witnesses: Use sworn statements from the witnesses to confirm execution. If only one witness is available or none are available, provide handwriting and unavailability proofs as the law permits.
• Executor’s oath or affirmation: Before the clerk issues letters, the executor must take and file an oath/affirmation promising to faithfully perform the duties of office.
• Resident process agent (if nonresident PR): A nonresident personal representative must appoint and file a North Carolina resident process agent before letters will issue.
• Forum and venue: File with the Clerk of Superior Court in the proper county. Venue depends on domicile or, in ancillary situations, where North Carolina property is located.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-7-1 (Oath of personal representative) – Oath or affirmation must be taken and filed before letters issue.
• North Carolina Gen. Stat. § 28A-2A-8 (Proving attested wills) – Sets out proof of execution, including affidavits if the will is not self-proved.
• North Carolina Gen. Stat. § 31-11.6 (Self-proved wills) – A properly self-proved will dispenses with witness testimony for probate.
• North Carolina Gen. Stat. § 28A-4-2 (Qualification; resident process agent) – A nonresident personal representative must appoint a resident process agent before letters can be issued.

Analysis

Apply the Rule to the Facts: Because the will was executed out of state, first determine if it is self-proved under that state’s law; if so, you generally won’t need witness affidavits in North Carolina. If it is not self-proved, file affidavits of the subscribing witnesses when you offer the will for probate; if a witness is unavailable, submit handwriting and unavailability affidavits as allowed. As the (likely) nonresident executor, file the resident process agent appointment before you qualify, then take and file your executor’s oath so the clerk can issue letters.

Process & Timing

1. Who files: The named executor (or another eligible propounder). Where: Clerk of Superior Court in the proper North Carolina county. What: Application to probate the will (with any required proof), affidavits of subscribing witnesses if the will is not self-proved (AOC-E-300/E-301), appointment of resident process agent if you are nonresident (AOC-E-500), and your oath/affirmation (AOC-E-400). When: Present the will promptly; if the named executor does not present it within roughly 60 days after death, others may seek probate after notice.
2. The clerk reviews the will and any affidavits; if sufficient, the will is admitted to probate and a certificate of probate is issued. If bond is required, post it. Then sign and file your oath/affirmation so the clerk can issue letters.
3. Final step: After your oath is filed (and any required process agent appointment and bond are in place), the clerk issues Letters Testamentary so you can administer the estate.

Exceptions & Pitfalls

• Self-proved wills: If the will is self-proved (including under another state’s law), witness affidavits are typically unnecessary; bring the original or certified copy and the self-proving acknowledgments.
• Unavailable witnesses: If a subscribing witness is deceased, out of state, cannot be found, or refuses to testify, use handwriting and unavailability affidavits per statute.
• Nonresident PRs: Do not overlook the resident process agent filing; the clerk generally will not issue letters until it is on file.
• Form and delivery details: The clerk may allow witness affidavits to be signed before a notary and sent directly to the clerk; confirm the clerk’s preferred practice in your county.

Talk to a Probate Attorney

If you need to file a witness affidavit and take your oath so the court can issue letters, our firm has experienced attorneys who can help you understand the steps and timing. Call us today.

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.