Probate Q&A Series

How can I confirm which version of my parent’s will is legally valid when one copy is missing a signature? – North Carolina

Short Answer

In North Carolina, the Clerk of Superior Court decides which will is valid by admitting a properly executed will to probate. An attested will must be signed by the testator and two witnesses in the testator’s presence. If a copy appears to be missing a witness signature, you can still prove the will using witness affidavits or other proof, or you may ask the court to resolve conflicts between versions through probate in solemn form with notice to all interested parties.

Understanding the Problem

You want to confirm which version of your parent’s will North Carolina will recognize so you can move forward with the estate. The decision turns on whether a will was properly executed and can be proved to the Clerk of Superior Court. One key fact is that a copy in your possession appears to be missing a witness signature.

Apply the Law

North Carolina recognizes several ways to prove a will. An attested will must be signed by the testator and attested by at least two competent witnesses who sign in the testator’s presence. A self‑proved will (with the required acknowledgments and notary certificate) can be admitted without calling witnesses. If a will is not self‑proved, the Clerk can accept affidavits from witnesses or, if a witness is unavailable, proof of handwriting and other competent evidence to establish due execution. If multiple versions exist or the execution is disputed, a petition for probate in solemn form allows the Clerk to give notice to all interested parties and hold a hearing to conclusively determine validity.

Key Requirements

  • Two-witness rule: A typed or handwritten attested will must be signed by the testator and at least two witnesses who sign in the testator’s presence.
  • Original signatures: The Clerk requires original signatures on the will presented for probate; a copy is used only in a lost‑will proceeding with extra proof.
  • Self‑proving option: If the will is self‑proved with the required acknowledgments, the Clerk may admit it without additional witness testimony.
  • Alternate proof if not self‑proved: Witness affidavits may be used; if a witness is unavailable, the Clerk may accept handwriting proof and other competent evidence of due execution.
  • Conclusive route if versions conflict: Probate in solemn form provides notice and a hearing; if unchallenged, it bars later will contests about that instrument.
  • Forum and timing: File with the Clerk of Superior Court in the county of the decedent’s domicile; a named executor may apply anytime, but after 60 days an interested person can step in with notice.

What the Statutes Say

Analysis

Apply the Rule to the Facts: If the original will bears your parent’s signature and two witness signatures, the Clerk can admit it—especially if it’s self‑proved. If a copy lacks a witness signature, you can still prove due execution by obtaining affidavits from the subscribing witnesses, or (if a witness is unavailable) by handwriting and other competent evidence. Because you and a sibling hold conflicting versions, asking the Clerk for probate in solemn form lets the court notify all interested parties and decide conclusively which instrument controls.

Process & Timing

  1. Who files: The named executor; if not acting within 60 days, any interested person after giving 10 days’ notice to the named executor. Where: Clerk of Superior Court in the decedent’s North Carolina county. What: File AOC‑E‑201 (Application for Probate and Letters); if the will is not self‑proved, include AOC‑E‑300 (and, if a witness is unavailable, AOC‑E‑301). When: As soon as practicable; after 60 days, an interested person may apply with 10 days’ notice.
  2. If signatures or versions conflict, request probate in solemn form under § 28A‑2A‑7. The Clerk issues summons to interested parties and sets a hearing; present witness testimony or affidavits. Timeframes vary by county.
  3. Upon admission, the Clerk issues a Certificate of Probate (AOC‑E‑304) and Letters to the personal representative. With Letters, you can address mortgages, utilities, and, if needed, seek court authority to take possession of real estate and remove occupants.

Exceptions & Pitfalls

  • If the original cannot be found, a copy may be admitted only if you prove due execution, the contents, a diligent search, and that loss or destruction was not by the testator with intent to revoke.
  • Do not submit a photocopy expecting probate unless you proceed as a lost‑will matter; the Clerk needs original signatures to admit an attested will.
  • Witness “unavailability” has a specific meaning; if a witness refuses or cannot be found, be ready with handwriting proof and other competent evidence.
  • If there is real property, delay can affect creditors’ rights; procedures and timelines can change by county, so confirm local Clerk requirements before filing.

Conclusion

To confirm the legally valid will in North Carolina, present the original instrument that was duly executed by the testator and two witnesses; if it is self‑proved, no witness testimony is needed. If a copy lacks a signature or versions conflict, prove due execution with witness affidavits or ask for probate in solemn form so the Clerk can conclusively decide which will controls. Next step: file an application for probate with the Clerk of Superior Court (and request solemn form if versions conflict).

Talk to a Probate Attorney

If you’re dealing with conflicting will versions or a missing witness signature, 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.