Short Answer

Yes—North Carolina allows the Clerk of Superior Court to admit a copy of a will if you prove a “lost or destroyed will” by clear, strong, and convincing evidence. You must show the will was properly executed, what it said, that it wasn’t revoked by the decedent, and that you conducted a diligent search for the original. The proceeding is typically filed in the decedent’s county of domicile; if anyone contests, the case moves to Superior Court.

Understanding the Problem

You want to know if, in North Carolina probate, you can move forward using a copy of the will when the original has not been produced. You have a copy, but the original isn’t available.

Apply the Law

In North Carolina, the Clerk of Superior Court can probate a lost or destroyed will, including admitting a copy, if the propounder proves the required elements by clear, strong, and convincing evidence. The clerk’s office is the forum for probate. If a party files a caveat (a formal will contest) or raises the issue of devisavit vel non, the matter transfers to Superior Court. Timing matters: if a named executor does not apply within 60 days of death, any interested person may apply after giving 10 days’ notice to the named executor.

Key Requirements

• Valid execution: Show the original will met North Carolina execution rules (typically by witness affidavits or other competent proof).
• Contents of the will: Prove what the will said; a photocopy is strong evidence, though testimony can also be used.
• No revocation by the decedent: Establish the original wasn’t destroyed by or at the direction of the testator with intent to revoke (overcoming the presumption if it was last in the testator’s possession).
• Diligent search: Document a thorough search in places the original would likely be found.
• Death and jurisdiction: Show the testator is deceased and file in the Clerk of Superior Court in the county of domicile.

What the Statutes Say

• N.C. Gen. Stat. § 28A-2A-4 (Compel production of a will) – Clerk may summon a person to produce the will for probate.
• N.C. Gen. Stat. § 28A-2A-7 (Probate in solemn form) – Petition-based probate with notice; contested matters transfer to Superior Court.
• N.C. Gen. Stat. § 28A-2A-8 (Proof of attested written will) – Describes acceptable proof when witnesses are available or unavailable.
• N.C. Gen. Stat. § 31-32 (Caveat—time to file) – Sets the deadline to contest a will after probate.

Analysis

Apply the Rule to the Facts: Because you have a copy, you can use it to prove the will’s contents. You will still need evidence of proper execution (for example, subscribing-witness affidavits) and to show a diligent search for the original. If the original was last kept by the testator, be prepared to rebut the presumption of revocation with facts (for example, loss by accident or in someone else’s custody). You may ask the Clerk to hear your pending production matter and your lost-will petition in the same setting, provided proper notice has been given.

Process & Timing

1. Who files: An interested party (including a beneficiary or named executor). Where: Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: Verified petition to probate a copy of a lost or destroyed will (attach the copy), supporting affidavits (e.g., AOC‑E‑300/E‑301 subscribing-witness affidavits if available), and, if seeking appointment, the Application for Probate and Letters (AOC‑E‑201). When: Any time after death; if the named executor has not applied within 60 days, you may apply after giving 10 days’ notice to the named executor.
2. Ask the Clerk to calendar the G.S. 28A‑2A‑4 production hearing and the lost‑will petition together; the Clerk may hear production first, then proceed on the lost‑will evidence if the original is not produced. Time to hearing varies by county and service completion on interested parties.
3. If the Clerk admits the copy, you receive a Certificate of Probate and, if requested and qualified, Letters to act as personal representative; the Clerk will mail Notice to Beneficiaries. If a caveat is filed or devisavit vel non is raised, the matter transfers to Superior Court.

Exceptions & Pitfalls

• Presumption of revocation: If the original was last in the testator’s possession and can’t be found, the law presumes revocation—be ready with facts to rebut it.
• Service and notice: For a lost‑will petition in solemn form, serve all interested parties under Rule 4; missing parties can delay the hearing or require a guardian ad litem.
• Witness issues: If subscribing witnesses are unavailable, use alternative competent evidence to prove due execution—plan affidavits accordingly.
• Consolidating hearings: The Clerk controls the calendar and may require the production issue be decided first before reaching the lost‑will petition.
• Contests: A caveat or devisavit vel non transfers the case to Superior Court, adding time and cost.
• Property sales: No one should list or sell estate property without proper authority; consider interim agreements or court orders to preserve assets.

Talk to a Probate Attorney

If you’re facing a missing original will and need to keep the estate on track, our firm can help you evaluate a lost‑will petition, coordinate witness affidavits, and schedule the right hearing with the Clerk. Call us today to discuss your options and timelines.

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.