Aug132025
Probate Q&A Series

What happens if a will wasn’t properly signed and is treated as invalid during probate in North Carolina? — North Carolina

Short Answer

If a North Carolina will does not meet the execution requirements or cannot be sufficiently proven, the clerk of superior court will refuse probate. The estate then proceeds as if there is no will (intestate), unless a prior valid will is produced and admitted. Interested persons may appeal the clerk’s denial or gather additional proof to try again; if a formal will contest (caveat) is filed, distributions are paused while the court decides validity.

How North Carolina Law Applies

North Carolina law requires an attested written will to be signed by the testator and attested by at least two competent witnesses; a notary alone does not replace the witness requirement. If the will is not self-proved, the clerk looks to witness testimony and other permissible proofs to establish due execution. If the proof falls short, the clerk must decline probate and the estate shifts to intestate administration unless a different valid will is offered. A writing that fails as an attested will cannot be repurposed as an oral (nuncupative) will, and a typed or partially typed document cannot be treated as a holographic will; however, a document entirely in the testator’s handwriting and signed may be eligible as a holographic will.

Practically, that means: if a will has only one witness, is missing witness signatures, or shows only a notary acknowledgment without two witnesses, the clerk will demand additional statutory proof. If you cannot supply it, the clerk issues a written order refusing probate, and the estate is administered under the intestacy statutes unless a prior valid will exists.

Key Requirements

  • Execution basics for attested wills: The testator must sign (or direct someone to sign in the testator’s presence), and at least two competent witnesses must sign in the testator’s presence. A notary is not required for validity, but a proper notary acknowledgment can make the will “self-proved,” eliminating the need for live witness testimony. See N.C. Gen. Stat. § 31-3.3 and § 31-11.6.

  • Proof if not self-proved: If two attesting witnesses are available, their testimony (often by affidavit) is used. If only one witness is available, the clerk can accept that testimony plus handwriting proof and other competent evidence. If no witnesses are available, the clerk can accept handwriting proof of the testator and at least two witnesses plus other competent evidence. See N.C. Gen. Stat. § 28A-2A-8.

  • Alternatives: A holographic will must be entirely in the testator’s handwriting and signed. An unexecuted or defective written will cannot be probated as an oral (nuncupative) will. See § 31-3.4 and § 31-3.5.

  • Out-of-state execution: A will can be valid in North Carolina if executed in compliance with the law of the place of execution or domicile. This may save a will that does not meet North Carolina’s formality if it met the other jurisdiction’s law. See § 31-46.

Process & Timing

  1. File and initial review: An interested person applies to probate the will. The clerk reviews execution and any self-proving affidavit. If the will is not self-proved, the clerk requests witness affidavits or testimony and any permitted substitute proof. See § 28A-2A-8.

  2. If proof fails: The clerk issues a written order declining to admit the will, with findings and conclusions. You may appeal to superior court for review of that order. See § 28A-2-4 and § 1-301.3.

  3. Administering without a valid will: If no valid will is admitted, the estate proceeds by intestacy. Priority to serve as administrator generally runs first to the surviving spouse, then heirs, then others, subject to qualifications and disqualifications. Bond is typically required unless waived by statute. See § 28A-4-1, § 28A-8-1, and § 28A-8-2.

  4. Creditor process: The administrator publishes and/or serves notice to creditors and manages claims and expenses per statute. See § 28A-14-1.

  5. Distribution by intestacy: Assets pass under North Carolina’s intestate succession rules. The spouse’s share depends on whether children or parents survive; then to children or other kin by statutory classes. See § 29-14, § 29-15, and § 29-16.

  6. Contesting a will’s validity: If a will was admitted despite objections, an interested person may file a caveat within three years of probate. Once a caveat is filed, the court restricts distributions during the contest, though necessary expenses and certain claims may still be paid. See § 31-32 and § 31-36.

What the Statutes Say

Exceptions & Pitfalls

  • Out-of-state execution may validate a will: Even if a will seems deficient under North Carolina formalities, it may be valid if it complied with the law of the place where it was executed or where the testator was domiciled. Always check § 31-46 before concluding invalidity.

  • Do not assume a defective attested will can be “saved” as another type: A typed or partially typed document cannot be a holographic will, and a defective written will cannot be probated as an oral (nuncupative) will.

  • Caveat freezes distributions: If someone files a caveat, the personal representative cannot distribute to beneficiaries while the contest is pending, though taxes, liens, timely claims, and certain professional fees may be paid under court oversight. See § 31-36.

  • Consider prior or alternate wills: If a later will is invalid, an earlier valid will may control. Conversely, if a later valid will revoked an earlier one, the earlier will cannot be revived unless the law allows it; bring all scripts to any caveat so the court can determine the true last will.

  • Proof options are broader than just two witnesses: When witnesses are unavailable, the clerk may accept handwriting proof and other competent evidence to establish due execution. See § 28A-2A-8.

Helpful Hints

  • Act fast to locate the subscribing witnesses; obtain their affidavits early if the will is not self-proved.
  • If only one witness is available, gather handwriting samples for the testator and the unavailable witness to support admissibility.
  • Review whether the document could qualify as a holographic will (entirely in the testator’s handwriting and signed) if it fails as an attested will.
  • If the clerk declines probate, discuss whether to appeal, seek additional proof, or proceed with intestate administration to protect assets and meet deadlines.
  • During any will contest, avoid distributions; pay only what statutes allow and keep detailed records.

Talk to a Probate Attorney

If you’re facing a will that may be invalid because it wasn’t properly signed, our firm can help you assess proof options, protect the estate, and navigate intestacy or a will contest. 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.