Short Answer

In North Carolina, a verbal will (called a “nuncupative will”) can be admitted to probate only if it was made during the decedent’s last illness or when death was imminent, the decedent declared the words to be their will, and specifically asked two people—present at the same time—to witness it. It can dispose of personal property only, not real estate. The Clerk of Superior Court must give notice to the spouse and next of kin, and you generally must probate it within six months unless the will was written down within ten days.

Understanding the Problem

You want the Clerk of Superior Court in North Carolina to recognize a verbal will at a probate hearing. The single issue is whether you can prove a nuncupative will so it controls the estate. Here, two people heard the decedent’s verbal will naming two sons. You need to know what must be shown, where to file, and the key timing rule to avoid losing the ability to probate the oral declaration.

Apply the Law

North Carolina allows nuncupative (oral) wills in narrow circumstances. The decedent must have made the will during the last illness or in imminent peril of death and not survived that peril. The decedent must have declared the statement to be a will and specifically requested two witnesses to be present and to bear witness at the same time. Before admitting a nuncupative will, the Clerk must give written notice to the surviving spouse and next of kin. The will can only transfer personal property. It must be probated within six months of being made unless it was reduced to writing within ten days, in which case it may be probated later.

Key Requirements

• Last illness or imminent peril: The decedent spoke the will during final illness or immediate danger of death and did not survive.
• Clear declaration and request: The decedent declared the words to be a will and asked two people to witness it.
• Simultaneous witnesses: Both witnesses were present at the same time when the will was spoken.
• Competent proof: Two witnesses can testify to the terms; at least one can testify to last illness or imminent peril.
• Notice first: The Clerk must give written notice to the spouse and next of kin before probate.
• Time limits: Probate within six months unless the will was written down within ten days.
• Scope: The oral will can transfer personal property only (not real estate).

What the Statutes Say

• N.C. Gen. Stat. § 31-3.5 (Nuncupative wills) – Defines an oral will and core execution elements.
• N.C. Gen. Stat. § 28A-2A-10 (Probate of nuncupative wills) – Requires notice to spouse/kin, witness proof, and sets the six-month/ten-day timing rule.
• N.C. Gen. Stat. § 31-3.2 (Property passing by will) – Limits nuncupative wills to personal property.
• N.C. Gen. Stat. § 31-5.1 (Revocation of wills) – Written will revocation methods; an oral will does not revoke a written one.

Analysis

Apply the Rule to the Facts: Two witnesses, including an attorney relative, heard the decedent name the two sons. If those witnesses can testify that the decedent declared the statement to be a will, asked them to witness it, and both were present together, the core witness element is met. One witness must also establish the decedent was in last illness or imminent peril and did not survive. If the oral will was not reduced to writing within ten days, you must complete probate within six months of when it was spoken; it can control only personal property.

Process & Timing

1. Who files: A propounder (often a named beneficiary or other interested person). Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: Application for probate and letters (AOC‑E‑201) plus sworn witness affidavits reciting the terms and circumstances of the oral will; request the Clerk to issue the required notices to spouse and next of kin. When: File so the will can be probated within six months of when it was spoken, unless it was reduced to writing within ten days.
2. The Clerk sends written notice to the surviving spouse and next of kin (publication if needed). After the notice period, the Clerk takes testimony (often by sworn affidavits) from two competent witnesses to the terms and simultaneous presence, and from at least one witness to last illness or imminent peril. Scheduling can vary by county.
3. If admitted, the Clerk issues a Certificate of Probate and appoints a personal representative by issuing Letters (if requested), and the estate proceeds through formal administration.

Exceptions & Pitfalls

• If the decedent was not in “last sickness” or imminent peril (or survived it), an oral will cannot be probated.
• If the decedent did not declare the statement as a will and ask two witnesses who were simultaneously present to witness it, probate will be denied.
• An oral will cannot transfer real estate—only personal property. Real property passes by a valid written will or, absent that, by intestacy.
• Do not rely on a defective written will as an oral will; a flawed or unsigned document cannot be probated as a nuncupative will.
• A beneficiary serving as a witness can create competency and evidentiary issues; use disinterested witnesses to avoid challenges.
• Notice defects (spouse/next of kin) can derail probate; ensure proper notice or publication before the hearing.

Talk to a Probate Attorney

If you’re dealing with a verbal will and a pending probate in North Carolina, 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.