Short Answer

In North Carolina, you contest a will by filing a caveat with the Clerk of Superior Court. If the will was probated in common form, you generally have three years to file; if a solemn-form petition is pending, you must file before the clerk’s hearing. The caveat transfers the case to Superior Court for a jury to decide validity (e.g., lack of capacity or undue influence). While it’s pending, you can ask the clerk to freeze distributions, compel an accounting, and use estate proceedings to locate and recover omitted or transferred assets.

Understanding the Problem

You want to know how, in North Carolina, a disinherited or underfunded heir can contest a will and ensure omitted assets are accounted for in probate. The key decision is whether and how to file a caveat (will contest) and obtain orders to preserve and recover estate property. Here, the named heir reportedly sold a major property and vehicles before probate began.

Apply the Law

North Carolina law requires a will challenge to be brought by “caveat,” which you file with the Clerk of Superior Court. An “interested” person (such as an heir or beneficiary affected by the will) has standing. If the will was probated in common form, the caveat must be filed within three years; if a solemn-form petition is pending, a caveat must be filed before the clerk’s hearing or the issue raised at that hearing. Filing a caveat transfers the case to Superior Court for a jury determination of whether the writing is the decedent’s valid will (devisavit vel non). While the caveat is pending, the clerk can order the personal representative not to distribute assets, require notice before certain payments, and address preservation of estate property. Separate estate proceedings can be used to compel an accounting and to discover and recover estate assets held by others.

Key Requirements

• Standing: You must be an “interested” person whose rights are affected by the will (for example, an heir or beneficiary).
• Deadline: File the caveat within three years after probate in common form, or before the clerk’s hearing if the will is being probated in solemn form.
• Where to file: File the caveat with the Clerk of Superior Court in the county where the estate is or will be probated; the clerk transfers the matter to Superior Court for jury trial.
• Asset preservation: Ask the clerk for orders during the caveat to stop distributions, control payments, and preserve estate property; raise any urgent issues about asset use or location with the clerk.
• Find and recover assets: Use a verified “discovery of estate assets” proceeding to examine persons believed to hold estate property and seek turnover orders; compel accountings and consider removal or suspension of a personal representative for misconduct.
• Evidence focus: To prove undue influence or lack of capacity, gather medical records, witness testimony, prior estate plans, and financial records showing control or pressure at signing.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Caveat to a will) – Who may file and timing; file with the clerk.
• North Carolina Gen. Stat. § 28A-2A-7 (Probate in solemn form) – Must caveat or raise devisavit vel non before the clerk’s hearing.
• North Carolina Gen. Stat. § 31-36 (Effect of caveat on estate administration) – Limits distributions, requires notice, and authorizes preservation orders during the caveat.
• North Carolina Gen. Stat. § 28A-15-12 (Proceeding to discover estate assets) – Verified petition to examine holders of estate property and seek turnover.

Analysis

Apply the Rule to the Facts: The other child is an “interested” person and may file a caveat to challenge the will based on alleged lack of capacity and undue influence. If the will has not yet been probated, they can both apply to probate and file a caveat at the same time. Because a major property and vehicles were sold before probate, the challenger should immediately seek preservation orders and use a discovery-of-assets proceeding to trace and recover property or proceeds, and compel an accounting. If the personal representative’s conduct threatens proper administration, seek suspension or removal.

Process & Timing

1. Who files: The disinherited/undervalued child (an interested party). Where: Clerk of Superior Court in the North Carolina county of probate. What: File a caveat (and, if needed, an application to probate); request preservation orders and an estate proceeding to discover assets; use Estates Proceeding Summons (AOC‑E‑102) for related estate proceedings. When: Within three years after common‑form probate, or before the clerk’s solemn‑form hearing.
2. After filing, the clerk transfers the caveat to Superior Court for a jury trial on will validity. Ask the clerk to enter orders limiting distributions and requiring notice before payments; move to compel an inventory/accounting and file a verified petition to discover estate assets. These steps often occur within weeks to a few months, though timelines vary by county.
3. Trial in Superior Court resolves whether the writing is the decedent’s valid will. After judgment, the case returns to the clerk for continued administration consistent with the verdict (for example, under intestacy or a different will). Expect subsequent orders addressing asset recovery and final distributions.

Exceptions & Pitfalls

• If the will was probated in solemn form and you were properly served, you may be barred from later filing a caveat.
• If you know of another will or codicil, present it in the caveat; holding it back can bar later probate of that writing.
• Preservation orders matter: without them, assets can be spent. Use the clerk’s authority to freeze distributions and require notice before payments.
• Recovery may be limited if property went to a bona fide purchaser; focus on tracing proceeds and seeking turnover or surcharge.
• Service and notice missteps can delay relief. Use proper service for estate proceedings and any injunction requests.

Talk to a Probate Attorney

If you’re dealing with a will that leaves out assets and you need to challenge its validity while protecting the estate, 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.