[NC] Can a trustee sign a self-proving affidavit for a deceased mother’s will if the original witnesses cannot be located?

NC Estate Probate

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The short answer is you cannot sign a self-proving affidavit for your mother’s will as trustee or heir. Only the original witnesses can do that. If the affidavit is missing, the will can still be probated another way.

Here is the long answer:

A self-proving affidavit must be signed by the testator and both witnesses while the testator is alive, so it cannot be added after death (NC Gen Stat § 31-11.6). A trustee has no authority to execute or replace a witness affidavit, even if you are the sole heir. When a will is not self-proved, the clerk can accept sworn testimony or affidavits from the witnesses, or use other proof if the witnesses cannot be located. Your mother’s Alzheimer’s diagnosis does not automatically invalidate the will, but capacity can matter if the will is contested.

Here is what you can do legally, step-by-step:

Ask the originating attorney if he has witness contact information or executed witness affidavits from the 2008 signing.
If witnesses are found, have them complete sworn affidavits to prove the will for filing with the clerk.
If witnesses cannot be located, request the clerk to proceed with probate using other proof of execution, which the clerk can accept under state statute.

As a bonus tip: ask the bank whether a small estate or summary administration process is available for the CD, which can sometimes avoid full probate letters if thresholds are met.

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I am the trustee of my mother’s revocable trust. She passed last month and I have to bring her will to probate. There currently is no self-proving affidavit. Can I sign one as her trustee as the clerk of the court would like one?

Lexi, Chatbot

I’m sorry to hear about your mother’s passing; that must be a difficult time for you. Can you tell me if the will has been located and is in your possession?

I have it…

Lexi, Chatbot

Have you already filed the will for probate, or are you in the process of preparing to file it?

Getting ready to file.

By the way, I live in North Carolina, as did my mother. She had Alzheimer’s as cause of death.

Legal Eagle

Hello, I’m Legal Eagle. I’m an attorney who works in your area of law and I’ll help you sort this out today. I’ve read what you shared, so let’s go over what’s happening and what your best next steps look like. Do you know whether the two witnesses who signed the will are still living and available to provide sworn statements to prove the will in probate?

I do not know. This was made in 2008.

I do not know them… the originating attorney might know them. I do talk with him.

Legal Eagle

It’s good that you’re in touch with the originating attorney. They might be able to help locate the witnesses or provide more information about the will. Has the attorney been involved in helping you prepare for the probate process?

No… as stated, I live in North Carolina. It’s a simple finish as it was only one certificate of deposit that has to go through the probate, although it is a fairly substantial amount.

All of her other funds were in a revocable trust in which I was the trustee.

Legal Eagle

Got it, thanks for clarifying. Since it’s just the certificate of deposit that needs to go through probate, do you know if there are any specific instructions or conditions in the will regarding this asset?

There are not… I am the sole heir and I made the CD. I asked the bank to put me as beneficiary at death; they did not, so now I have to bring it through probate to get the right letters.

Legal Eagle

Ok! Did you need to tell me anything else? If not, I can start with answering your question.

No, that’s about it.

Legal Eagle

Here is the long answer:

Here is what you can do legally, step-by-step:

Ask the originating attorney if he has witness contact information or executed witness affidavits from the 2008 signing.
If witnesses are found, have them complete sworn affidavits to prove the will for filing with the clerk.
If witnesses cannot be located, request the clerk to proceed with probate using other proof of execution, which the clerk can accept under state statute.

As a bonus tip: ask the bank whether a small estate or summary administration process is available for the CD, which can sometimes avoid full probate letters if thresholds are met.

Legal Eagle

Does that help clarify things? I want to make sure I didn’t leave anything out.

Good enough, thank you.

Legal Eagle

For sure! I want to ensure you feel completely satisfied with our conversation. Were there any details I missed? Did you have any concerns about this issue that still need to be addressed? I’m happy to help.

No… I kind of figured this. I have an old deed from 2008 with her signature on it for extra proof of signature if they need it, and her naturalization papers from the 1950s, although that signature doesn’t look quite as good. The 2008 deed looks exact, but it’s a copy and not the original.

Legal Eagle

Sure thing! I hope I was able to help resolve your issue. If you have any other questions, feel free to ask.

Legal Eagle

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