Short Answer

In North Carolina, you generally have three years from the date a will is admitted to probate in common form to file a caveat (will contest). You cannot file a caveat until the will has been probated. If the will is being probated in solemn form, you must object before or at the clerk’s hearing; after proper service and a binding order, a later caveat is barred. Minors and legally incompetent persons have three years after their disability is removed.

How North Carolina Law Applies

North Carolina recognizes two ways to probate a will: common form (informal) and solemn form (with notice and a hearing). If a will is admitted in common form, any “interested” person—such as an heir, beneficiary, or someone who would take under a different will—may file a caveat within three years of the probate date. The clock starts when the clerk admits the will to probate, not on the date of death. You cannot caveat before probate.

If the executor seeks probate in solemn form, the clerk schedules a hearing and serves all interested parties. To contest in that setting, you must file a caveat before the hearing or raise the issue at the hearing; if you do not, the order becomes binding on properly served parties and later caveats are barred. Separately, if a will was declared valid in a pre-death “living probate” proceeding, parties to that case are generally barred from later contesting it after death.

Example: If the clerk admitted the will on March 1 in common form, the typical deadline to file a caveat is three years from that probate date. If instead the executor filed for solemn-form probate and you were served with notice of a hearing on April 15, you must file the caveat before that hearing or raise your challenge at the hearing, or you will likely be barred.

Key Requirements

• The will has been admitted to probate (common form) in North Carolina; or, if in solemn form, you must object before or at the clerk’s hearing.
• You are an “interested” person with a direct, pecuniary stake (for example, an heir-at-law or a beneficiary under another will).
• File within three years of the common-form probate date. Minors and legally incompetent persons have three years after disability is removed.
• File the caveat with the clerk of superior court in the estate file; do not file directly in superior court.

Process & Timing

1. Confirm probate status and date: Obtain the date the clerk admitted the will to probate and whether it was common form or solemn form.
2. Evaluate standing and grounds: Ensure you are an interested person and assess potential grounds (e.g., improper execution, lack of capacity, undue influence, fraud, revocation).
3. File the caveat with the clerk: File in the decedent’s estate file in the county of probate and pay the filing fee. The clerk records the caveat and transfers the matter to superior court for jury trial.
4. Automatic protections during the caveat: The clerk orders the personal representative not to distribute assets or take commissions, and to preserve estate property. Limited payments (taxes, liens, timely claims, etc.) may be approved by the clerk on notice to the parties.
5. Superior court litigation: Parties are aligned, discovery proceeds, and the issue of whether the paper writing is the decedent’s will is tried to a jury, unless the court enters judgment on motion or the parties enter a court-approved settlement.
6. Outcome and next steps: If the will is upheld, it is admitted in solemn form. If set aside, another valid will may control; otherwise, the estate passes by intestacy.

What the Statutes Say

• North Carolina General Statutes § 31-32 — Caveat to probate; time for filing; who may file.
• North Carolina General Statutes § 28A-2A-7 — Probate in solemn form (notice, hearing, and bar to later caveats for properly served parties).
• North Carolina General Statutes § 31-33 — Transfer of caveat to superior court and notice to interested persons.
• North Carolina General Statutes § 31-36 — Administration of estate during pendency of caveat (asset preservation and limited payments).
• North Carolina General Statutes § 31-37.1 — Judgment in caveat and settlement agreements.
• North Carolina General Statutes § 28A-2A-3 — Notice to beneficiaries after probate.
• North Carolina General Statutes § 28A-2B-4 — Effect of pre-death will validation (living probate) on later caveats.

Exceptions & Pitfalls

• Do not wait: Missing the three-year window after common-form probate usually bars the caveat.
• Cannot caveat before probate: You must wait until the clerk admits the will to probate.
• Solemn-form trap: If you are properly served in a solemn-form proceeding and do not object before or at the hearing, you are typically barred from later contesting the will.
• Disability tolling is limited: Only minors and legally incompetent persons get extra time—three years after disability ends.
• Living probate bar: Parties to a pre-death validation of a will are generally barred from later caveating that will after death, with only narrow exceptions.
• File in the right place: File the caveat with the clerk of superior court in the estate file. Filing directly in superior court can be dismissed for lack of jurisdiction.

Helpful Hints

• Ask the clerk for the probate date and whether the will was admitted in common or solemn form; calendar the applicable deadline.
• Gather key documents early: the will and any prior wills, medical records, witness information, and evidence of undue influence or incapacity.
• If you receive notice of a solemn-form hearing, act immediately—file your caveat before the hearing or be ready to raise your objection at the hearing.
• Consider asset preservation: If needed, request the clerk’s guidance on preserving estate assets while the caveat is pending.
• Procedures can vary by county and deadlines can change—confirm local practices with the clerk or your attorney.

Disclaimer: This article is general information about North Carolina law, not legal advice. Reading it does not create an attorney–client relationship.

Talk to a Probate Attorney

If you’re weighing a will contest or responding to one, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.