Short Answer

In North Carolina, the last valid will controls. A later will that was properly executed and not revoked supersedes earlier wills; inconsistent terms in a later valid will revoke conflicting provisions in an earlier one. If both wills are offered together, the Clerk of Superior Court decides which to admit to probate; if one will is already probated, you must file a will caveat in Superior Court—generally within three years—to challenge it. Validity turns on proper execution, the signer’s capacity, absence of undue influence, and whether a later will revoked an earlier one.

Understanding the Problem

In North Carolina probate, how do you decide which of two conflicting wills controls—especially when one favors a caregiver child and the other splits property evenly among children? You want to know who, where, and when to act so the legally valid will governs the estate.

Apply the Law

Under North Carolina law, a will’s validity depends on proper execution (attested or holographic), the testator’s capacity, freedom from undue influence or fraud, and whether a later valid will revoked an earlier one. The Clerk of Superior Court is the judge of probate and handles initial probate in common form. If a will has already been probated and someone contests it, the challenge proceeds by caveat in Superior Court, and the estate largely pauses on distributions while the caveat is pending. A named executor should present the will promptly; if the executor does not act within a reasonable window, an interested person may apply to probate.

Key Requirements

• Proper execution: An attested will must be signed by the testator and witnessed by two competent witnesses; a holographic will must be entirely in the testator’s handwriting and signed.
• Testamentary capacity: At signing, the testator must understand their property, natural heirs, what the will does, and its consequences.
• No undue influence or fraud: The will must reflect the testator’s free intent, not coercion or manipulation.
• Revocation rules: A later valid will can revoke an earlier will expressly or by inconsistent terms; destruction with intent to revoke can also revoke.
• Forum and timing: Initial probate is before the Clerk of Superior Court. If a will is already probated and you contest it, file a caveat in Superior Court—generally within three years of probate.
• Clerk vs. jury: When multiple scripts are offered together, the Clerk decides which to probate in common form. Once a will is probated, only a Superior Court jury (or judgment) in a caveat can set it aside.

What the Statutes Say

• North Carolina Gen. Stat. § 31-3.3 (Attested wills – execution) – Sets the signing and witness requirements for a typed or handwritten attested will.
• North Carolina Gen. Stat. § 31-3.4 (Holographic wills) – Defines requirements for a handwritten will.
• North Carolina Gen. Stat. § 31-5.1 (Revocation of written wills) – Explains revocation by later will or by destruction with intent to revoke.
• North Carolina Gen. Stat. § 31-32 (Caveat – three-year deadline) – Sets the general three-year period to contest a will after probate.

Analysis

Apply the Rule to the Facts: You have two conflicting wills—one favoring a caregiver child and one dividing assets evenly. First, determine whether each will meets North Carolina execution requirements and whether the signer had capacity and was free of undue influence. If both wills are offered together, the Clerk decides which to admit. If one will has already been probated, you must file a caveat in Superior Court—generally within three years—so a jury can decide which script is the testator’s last valid will and whether the later will revoked the earlier one.

Process & Timing

1. Who files: The named executor or any interested person (if the executor doesn’t act). Where: Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: Application to probate the will(s), typically using AOC-E-201 (Application for Probate and Letters Testamentary/Of Administration CTA). When: If the named executor doesn’t present the will within about 60 days, an interested person can apply after giving brief notice to the executor.
2. If both wills are presented together, the Clerk examines execution, capacity indicators, and revocation language to decide which to admit in common form. If one will has already been admitted and you dispute it, file a caveat in Superior Court; the Clerk will transfer the dispute, beneficiaries will receive notice, and the personal representative is restricted from distributing assets while the caveat is pending.
3. In Superior Court, the caveat results in a judgment determining which instrument—if any—is the decedent’s last will. The valid will is then probated in solemn form, and administration proceeds under that judgment.

Exceptions & Pitfalls

• You can’t file a caveat until a will is actually probated; if no will is on file, first apply to probate the will(s).
• If one will is already probated, you cannot simply offer a different will later to “replace” it; you must challenge the probated will by caveat.
• If one will is lost or destroyed, you may still prove it with strong secondary evidence, but the burden is higher.
• During a caveat, the personal representative cannot distribute to beneficiaries; they may only preserve assets and pay limited expenses with notice to the Clerk.
• Anyone trying to sell estate real estate should proceed cautiously; title and sale authority depend on what will ultimately controls and on estate administration requirements.
• If all interested parties are properly served in probate in solemn form, later caveats can be barred; procedures and deadlines can change by county.

Talk to a Probate Attorney

If you’re facing two conflicting wills and need to determine which one controls under North Carolina law, our firm has experienced attorneys who can help you understand your options and timelines. 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.