Aug132025
Probate Q&A Series

How can I probate a copy of a will without it being presumed revoked? — North Carolina

Short Answer

In North Carolina, you can probate a copy of a lost or destroyed will by asking the clerk of superior court to admit the copy under the “lost will” process. You must prove, with clear, strong, and convincing evidence, that the original was duly executed, what its contents were, that a diligent search failed to locate it, and that its loss was not caused by the testator revoking it. If the original was last in the testator’s possession and can’t be found, a presumption of revocation applies—but you can overcome it with facts showing a different cause of loss or that the will was in someone else’s custody.

How North Carolina Law Applies

North Carolina courts allow a copy of a will to be probated when the original is lost or destroyed. The clerk of superior court has jurisdiction to hear and decide these probate questions. Because no statute spells out every detail for “lost wills,” North Carolina courts require a focused evidentiary showing before a copy will be accepted. In short, you must establish: (1) the testator died; (2) the original will was properly executed under North Carolina law (or another law recognized here); (3) the contents of the will; (4) that the original was lost or destroyed without the testator’s intent to revoke; and (5) that you conducted a diligent search in places where the will would likely be.

Where the original was last seen in the testator’s possession and cannot be found after death, the law presumes the testator revoked it. You can rebut that presumption by showing facts indicating the loss or destruction was not by the testator or at the testator’s direction—for example, evidence of a house fire, theft, hospitalizations preventing access to the storage location, or proof the will was held by a third party. A photocopy is strong evidence of contents, and if subscribing witnesses are unavailable, other competent evidence can prove due execution.

Key Requirements

  • Burden and standard of proof: The person offering the copy (the “propounder”) bears the burden to prove a lost will by clear, strong, and convincing evidence. That includes:

    • Death of the testator.
    • Due execution: For an attested will, the testator signed and two competent witnesses attested in the testator’s presence. If the will was holographic, it was wholly in the testator’s handwriting and signed by the testator.
    • Contents: A photocopy, conformed copy, or witness testimony can establish what the will said.
    • Loss or destruction without intent to revoke: Facts supporting accidental loss, third-party custody, disaster, or other non-revocation causes.
    • Diligent search: A good-faith, thorough search in all likely places (home files, safe deposit box, attorney’s office, clerk’s safekeeping, digital records, etc.).

  • Presumption of revocation and rebuttal:

    • Presumption arises when the original was last known to be in the testator’s possession and is missing at death.
    • Rebut by showing the will was last in third-party custody, or by concrete facts indicating the testator did not and could not have destroyed it with intent to revoke.
    • If your goal is only to prove a later lost will’s “revocation clause” to defeat an earlier will, North Carolina law allows proof of that clause without having to prove why the later will is missing.

  • Proof flexibility if witnesses are unavailable: If subscribing witnesses cannot be located or refuse to testify, the clerk may accept alternate competent evidence of execution, such as testimony from others present at signing, handwriting proof for holographic wills, and other best available evidence.

Process & Timing

  1. Gather evidence. Collect the best available copy of the will. Obtain affidavits from subscribing witnesses (if possible), the drafting attorney or staff, and others with knowledge of execution or contents. Document your search: where you looked, who you contacted, and results.

  2. Check for safekeeping. Ask the clerk if the testator deposited a will for safekeeping. If you suspect someone is withholding the original, consider a proceeding to compel production.

  3. Choose the filing path.

    • Common form (ex parte): File an application to probate the lost will copy with supporting affidavits. Faster, but an interested party may later file a caveat (will contest).
    • Solemn form (noticed hearing): File a verified petition, name and serve interested parties (heirs and anyone affected by the will). After a hearing, if admitted and all were properly served and did not contest, the probate is binding on them.

  4. File with the clerk of superior court in the county of the decedent’s domicile. There is no statewide pre-printed form specifically for lost wills. Include: the copy, affidavits, facts showing due execution, contents, diligent search, and why the loss was not a revocation by the testator. If minors or unknowns are interested parties in a solemn-form filing, request appointment of a guardian ad litem.

  5. Hearing and order. The clerk reviews affidavits and may take testimony. If satisfied, the clerk issues a certificate of probate and retains the file copy. If challenged or if an issue of devisavit vel non is raised, the matter transfers to superior court for a caveat proceeding.

  6. After admission. If needed, seek letters testamentary or administration with will annexed to administer the estate. If you probated in common form, note that caveat deadlines apply.

What the Statutes Say

Exceptions & Pitfalls

  • When presumption does not apply: If credible evidence shows the original was last in a third party’s custody (for example, the drafting attorney’s vault), the missing-original presumption of revocation typically does not arise.
  • Duplicate originals: Even if a second “original” exists elsewhere, the presumption can still apply if the original kept by the testator is missing. Be ready to rebut with specific facts.
  • Revocation clause strategy: If your goal is to defeat an older will, you may prove that a later lost will contained a revocation clause. North Carolina courts allow proof of that clause’s existence without proving why the later will went missing.
  • Diligent search is essential: Judges look for a documented, thorough search. Keep a log of locations checked, people contacted, and dates. Include likely locations (home files, safe deposit box, attorney files, clerk’s safekeeping) and digital sources.
  • Holographic lost wills: Be ready with handwriting witnesses and proof the document was entirely in the testator’s handwriting and signed by the testator.
  • Notice missteps: In solemn-form filings, name and serve all interested parties, and request a guardian ad litem for minors or unknowns. Missing a party can undermine a conclusive result.
  • Don’t try to file a copy “as the original”: For a copy to control, you must proceed as a lost/destroyed will and meet the evidentiary requirements.

Helpful Hints

  • Create a “search affidavit” describing where you looked and what you found (or didn’t find). Attach photos or inventories if a disaster occurred.
  • Contact the drafting attorney’s office for their file and potential witnesses (including staff). Ask about duplicate originals and storage practices.
  • Ask the clerk to check whether the testator deposited a will for safekeeping, and coordinate a safe deposit box inventory if appropriate.
  • Use solemn form if you want a binding result on served parties and anticipate objections.
  • If witnesses can’t be found, gather other competent evidence: notary logs, contemporaneous emails or letters, and testimony from people present at signing.

Talk to a Probate Attorney

If you need to probate a copy of a will and avoid the “presumed revoked” problem, 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.