Finch Legal

As an executor or prospective executor, understanding the legal steps and obligations involved in probate is essential to fulfilling your role effectively. North Carolina General Statutes Chapter 28A, specifically Article 2A, lays out the guidelines for the probate of wills. This article provides executors and other interested parties with a framework for filing and validating a will through the probate process. Below is a practical guide to some of the key provisions under this article.

Source: https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_28A/Article_2A.pdf

Applying for Probate

The first step in the probate process is for the executor named in the will to submit the will to the clerk of the superior court in the jurisdiction where the testator (the deceased) resided. Under NCGS § 28A-2A-1, this application can be filed at any time after the testator’s death. If the executor does not file for probate within 60 days, a devisee (someone designated in the will to receive property) or another interested party can step in to initiate probate. They must provide the executor with a 10-day notice, giving the executor a final opportunity to begin probate themselves. The court may shorten this waiting period for good cause, helping to expedite the process when necessary.

Notifying Beneficiaries

Once a will is submitted for probate, the clerk of the superior court is responsible for notifying all known devisees of the proceedings. As stated in NCGS § 28A-2A-3, this notification ensures that beneficiaries are aware of the probate process, giving them a chance to participate or raise concerns as appropriate.

Compelling the Production of a Will

Occasionally, a will may be held by a third party who refuses to produce it. NCGS § 28A-2A-4 provides a solution by empowering the court to compel the production of the will through a summons. If the person holding the will fails to comply, they can be held in contempt of court, potentially facing jail time until they produce the document or adequately explain its whereabouts.

Requirements for Probate Applications

For a probate application to be accepted, certain information must be verified. Under NCGS § 28A-2A-5, the court will need an affidavit from the applicant, confirming their interest in the estate (whether as an executor, devisee, or another party) and providing information about the value and nature of the testator’s property. The affidavit must also list known beneficiaries, their relationships to the deceased, and whether any of the beneficiaries are minors.

Probate in Solemn Form

For executors or interested parties seeking a more formal probate process, NCGS § 28A-2A-7 allows for a petition to probate the will in solemn form. This involves a formal hearing where evidence regarding the validity of the will is presented. If an interested party disputes the will’s validity, they may file a “caveat,” prompting the matter to proceed in superior court.

Different Types of Wills and How They Are Probated

Article 2A provides specific guidelines for different types of wills, including:

• Attested Written Wills: These are probated based on testimony from witnesses or proof of handwriting. If attesting witnesses cannot testify, the clerk may require additional proof of the will’s authenticity (NCGS § 28A-2A-8).
• Holographic Wills: Written entirely in the testator’s handwriting, these wills require the testimony of at least three witnesses who believe the handwriting is genuine (NCGS § 28A-2A-9).
• Nuncupative (Oral) Wills: Generally used only in dire circumstances, these must be reduced to writing within 10 days and proven with the testimony of witnesses who were present when the will was made (NCGS § 28A-2A-10).

Special Provisions for Armed Forces Members

For wills executed by members of the Armed Forces, NCGS § 28A-2A-11 offers an alternative to traditional probate methods, allowing probate based on testimony from witnesses familiar with the testator’s handwriting. This provision recognizes the unique circumstances faced by service members, ensuring that their wills can still be validated even if witnesses are unavailable.

Conclusion and Call to Action

Serving as an executor can be a complex and time-consuming role, but with an understanding of Chapter 28A, Article 2A, you can approach probate with confidence and clarity. However, navigating the probate process alone can be overwhelming, especially if unique situations or conflicts arise.

If you are currently serving as an executor or preparing to take on the role, let Finch Legal PLLC guide you through North Carolina’s probate process. Our firm is here to support you in meeting your responsibilities with the expertise, sensitivity, and commitment required. Contact us today for a consultation to ensure that the estate is managed smoothly and in full compliance with the law.