Filing for Probate
To apply for probate of a North Carolina Will, you need to file and application for probate together with an affidavit. § 31 16
The application may be made at any time after the testator’s death.
Who may apply for probate?
During the first 60 days after the death, only the executor named in a North Carolina Last Will & Testament has the right to apply to have the document admitted to probate. § 31 12
If the executor does not file the application within 60 days, then the application may be filed by:
- a beneficiary named in the Will; or
- any other person interested in the estate.
This person must first give 10 days’ notice to the executor of their intention to file. § 31 13
Notice of Probate Application
The clerk of the superior court must send a notice to all the beneficiaries, notifying them that the North Carolina Will has been submitted for probate.
The estate must pay the expenses of such notice. § 31 14
Required Witness Testimony
If the Will is self-proved, no further witness testimony is required to be filed (unless the Will is contested). § 31 18.1
If not self-proved, then both witnesses need to provide testimony. This testimony may be given in the form of an affidavit. § 31 24
There are circumstances where the court may probate a North Carolina Last Will on the testimony of one witness (for example where the other witness is dead, insane or out of the state). Proof of the unavailable witness’s handwriting is still required. § 31 18.1
The Will is probated once the court is satisfied that it was duly executed.
Refusing to hand over the Will
If someone is deliberately withholding a North Carolina Will, you may request the clerk to summons and compel the person to exhibit the Will in his court for probate. Such a request must be made by affidavit and must set forth the facts.
If the person refuses in contempt, then he/she will be committed to jail until the Will is produced or accounted for. § 31 15
The North Carolina Estate tax is based on the federal estate tax.
If the estate must file a federal estate tax return with the IRS, then the personal representative must also file a North Carolina estate tax return (Form A-101) with the department of revenue.
If no tax return is required to be filed, the personal representative must still obtain an inheritance and estate tax waiver (Form A-105) in order to remove a lien against real property.