Where Do I Probate a Will?

When a person with an executed will dies, the property specified in the will is distributed per the will, with some exceptions. When a will seeks to grant certain property, such as real estate or jewelry, the will must go through the process of probate in order to carry out the decedent’s wishes contained in the document. Probate is the court-supervised process usually required to authenticate the will to the court, wrap up the deceased’s estate—including paying off its taxes and creditors—and distribute the remaining assets according to the will. Probate is a lengthy process in and of itself. However, the first and foremost issue for the decedent’s loved ones is to figure out where they should file to admit the will to probate.

The issue of where to file a will for probate—or any other legal claim—is referred to as “venue.” The person responsible for supervising the probate of a particular will is known as the “executor.” The decedent could have identified a specific person they wished to act as executor in the will, or if they did not, a party with an interest in the will can apply to administer the will. If neither of these occur, the court can appoint a third party to supervise probate.

If an executor has been identified, he or she takes the will to the clerk of superior court in one of the following locations in order to admit the will to probate in North Carolina:

• The county where the deceased was legally domiciled, or living, when they died;
• The county where the deceased left their property or assets if the person did not live in North Carolina at the time of their death. If this applies to more than one county, the county where proceedings are first commenced has priority as to venue; or
• Any county in North Carolina if the deceased was a nonresident motorist who died within the state.

Sometimes individuals with an interest in a North Carolina try to start probate proceedings in more than one county, or there is otherwise a true question as to where the proper county for probate proceedings is. Probating a will in a different county from where you live can make the process even more time-consuming. Further, relatives and other recipients in the will understandably want the proceeding as local to their day to day lives as possible for a number of reasons. For example, to authenticate the will before the clerk of court so that the probate process may begin, the executor and original witnesses to the will (if they are still available) must typically appear and swear as to the document’s authenticity.

When questions as to venue occur, the clerk of superior court in the county where probate was first applied for can refer the matter to the court for a hearing. Upon the filing of a motion to determine venue, a judge will rule on the proper venue to probate the estate. After the judge rules, the court can order the transfer of the entire matter to the superior court of the correct county; at that point the court will stay, or halt, the matter in the other counties.

Any party with an interest in the will can raise a motion for determination of venue, but there is a time limit within which they may do so. Any questions as to the correct venue must be raised within the first three (3) months of the court issuing the letters of administration or “letters testamentary” to the estate’s executor. After this point the issue of venue is considered to be waived and the probate will proceed in the county in which it was originally filed.

A probate proceeding is considered commenced once someone properly “offers” the will for probate with a superior clerk of court. Offering a will to probate has different requirements depending on the manner in which the will was executed. For an attested, written will, it typically means bringing the required witnesses who can swear as to the veracity of the document and otherwise proving it as valid to the clerk of court’s satisfaction. Alternatively, probate can also be triggered by applying for letters of administration. Letters of administration and letters testamentary are issued by the clerk of superior court and grant the applicant or the named executor the authority to carry out all responsibilities necessary to fulfill the deceased’s wishes per their will.

If you and your loved ones are facing admitting a will to probate, it is important to speak with an estate law attorney to guide you through the often complicated and arduous process. Contact Arnold & Smith, PLLC today for a consultation with one of our estate law attorneys. We handle a wide variety of civil and criminal defense matters for clients throughout the Charlotte, Mooresville, and Monroe regions, including family law and divorce, estate law and personal injury.