Short Answer

In North Carolina, a will stays valid until you revoke it or replace it with a new, properly executed document. Your spouse’s death does not cancel your will. If your old will was signed correctly and names your children to take if your spouse dies first, it will still control unless you change it. To update, sign a new will or a codicil with the required formalities; do not handwrite changes on the original.

Understanding the Problem

You want to know whether your decades-old North Carolina will still works now that your spouse has passed, and what to do if you want to change it. You are the testator, and the key decision is whether to rely on the current will (which leaves property to your two children if your spouse dies first) or to sign a new will or codicil with the proper steps in North Carolina.

Apply the Law

Under North Carolina law, wills are “ambulatory,” meaning they have no effect until death and remain in force until revoked. A spouse’s death does not revoke a will. To change your plan, you must either execute a new will or a codicil with the same formalities required for wills. Handwritten edits on the old document can cause problems and usually won’t work. Making a will “self-proved” helps probate later. If you want court confirmation now, North Carolina allows a petition for a judicial declaration that your will is valid (living probate).

Key Requirements

• Proper execution: A written will must be signed by you and witnessed by at least two competent witnesses, who sign in your presence.
• No automatic revocation by spouse’s death: Your spouse’s death does not cancel your will; it continues to govern until you revoke or replace it.
• Changing or revoking: You can revoke by signing a new will or codicil (with the same formalities) or by physically destroying the prior will with intent to revoke.
• Self-proving option: Adding a notarized self-proving affidavit from you and the witnesses allows probate without live witness testimony.
• Living probate (optional): You can petition the Clerk of Superior Court while alive to have a judge declare your will valid, giving added certainty.

What the Statutes Say

• North Carolina Gen. Stat. § 31-3.3 (Execution of attested will) – Signature by the testator and attestation by two witnesses in the testator’s presence.
• North Carolina Gen. Stat. § 31-5.1 (Revocation of written will) – Revocation by properly executed subsequent writing or by physical act with intent.
• North Carolina Gen. Stat. § 31-11.6 (Self-proved wills) – Testator and witness affidavits before a qualifying officer permit probate without further proof.
• North Carolina Gen. Stat. § 28A-2B-1 (Judicial declaration of validity before death) – Procedure to obtain a court ruling that a will is valid during the testator’s life.

Analysis

Apply the Rule to the Facts: Because your will was executed over twenty years ago and directs gifts to your two children if your spouse dies first, your spouse’s death does not invalidate it. If the original was signed and witnessed correctly, it remains effective. If you want to change beneficiaries, executors, or add planning for current assets, you should sign a new will or a codicil with two witnesses (and consider making it self-proved). Also review nonprobate assets (like beneficiary designations) to ensure they match your goals.

Process & Timing

1. Who files: You. Where: No filing is required to keep using your current will. To update it, meet with a North Carolina estate planning attorney. For a court confirmation of validity, file in the Clerk of Superior Court in your county of residence. What: Either (a) execute a new will/codicil with two witnesses (and self-proving affidavits), or (b) file a petition for a judicial declaration that your will is valid. When: Anytime during your lifetime; earlier is better to avoid confusion.
2. After attorney review, drafts are prepared (typically days to a few weeks depending on complexity). You will sign in a formal ceremony with two witnesses; adding a notary for the self-proving affidavits is recommended. Counties differ on availability and procedures if you choose to deposit an original will for safekeeping.
3. Store the signed original in a secure place. If you executed a new will, it typically includes a clause revoking prior wills; keep only the new original to avoid confusion. If you used living probate, the court issues an order declaring validity.

Exceptions & Pitfalls

• Do not mark up your will: Handwritten edits or crossing out provisions can create disputes and are usually ineffective; use a codicil or new will.
• Nonprobate assets: Beneficiary designations on life insurance, retirement accounts, and joint accounts pass outside the will; update them to match your plan.
• If a beneficiary dies before you: Depending on your will’s wording, their share may pass to their descendants under state anti-lapse rules; update language if you want a different result.
• Capacity and influence concerns: For late-in-life changes, meet privately with your attorney; consider obtaining a physician’s note documenting capacity to reduce contest risk.
• Revocation by destruction requires intent: If you destroy the old will, be sure a new, properly executed will is in place and keep the original safe.

Talk to a Estate Planning Attorney

If you’re dealing with confirming an old will and updating it after a spouse’s passing, 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.