Can I obtain letters testamentary based solely on a copy of the will? – North Carolina

Short Answer

Sometimes, yes—but not automatically. In North Carolina, the Clerk of Superior Court can admit a copy of a will to probate and then issue letters testamentary if the copy is properly proved and the missing original is satisfactorily accounted for. When the original will cannot be found, the court generally requires proof of due execution, the will’s contents, a diligent search, and facts showing the will was not revoked.

Understanding the Problem

In North Carolina probate, the key question is: can the Clerk of Superior Court issue letters testamentary to the person named as executor when the original signed will is missing and only a copy is available? This situation usually turns on whether the missing original can be explained well enough for the clerk to treat the copy as the decedent’s last will, rather than treating the missing original as a sign the will was revoked. The decision typically happens in an estate proceeding before the clerk, and timing often matters because estate assets may need immediate management while the probate issue is pending.

Apply the Law

North Carolina allows a copy of a will to be used and, in the right case, admitted to probate. But when the original will is missing, North Carolina law generally applies a presumption that the testator revoked the will if the original was last known to be in the testator’s possession and cannot be found after death. To overcome that presumption and probate a copy, the clerk typically requires a verified petition and evidence that explains the missing original, proves the will was properly executed, and shows a diligent search. If the clerk admits the copy to probate, the clerk can then issue letters testamentary to the executor.

Key Requirements

Due execution: Proof that the will was signed and witnessed as required for an attested written will (or otherwise valid under North Carolina rules for the type of will involved).
Contents of the will: Proof of what the will says, usually shown by the copy offered for probate.
Loss or destruction plus a diligent search: Proof that the original cannot be found after a meaningful search in the places it would most likely be kept.
No revocation: Proof that the will was not lost or destroyed by the testator (or at the testator’s direction) with intent to revoke.

What the Statutes Say

N.C. Gen. Stat. § 98-5 (Copy of lost will as evidence; letters to issue) – If a copy of a will is admitted to probate, the clerk issues letters testamentary.
N.C. Gen. Stat. § 8-28 (Copies of wills) – Properly certified copies of wills may be used as evidence in proceedings where the will’s contents matter.
N.C. Gen. Stat. § 31-35 (Affidavit of witness as evidence) – In certain situations, affidavits and proofs taken by the clerk can serve as evidence of due execution.

Analysis

Apply the Rule to the Facts: The facts described include a filed copy of the will and sworn statements from the drafting attorney and a notary supporting proper execution, which goes to the “due execution” requirement. The copy itself addresses the “contents” requirement. The described efforts—contacting the clerk and drafting attorney and searching the property (including with law enforcement)—support “diligent search.” The remaining pressure point is the “no revocation” requirement: the clerk typically needs enough facts to conclude the original is missing for reasons other than the decedent intentionally revoking it.

Process & Timing

Who files: The person seeking to probate the will (often the named executor) or another interested person. Where: The Estates Division of the Clerk of Superior Court in the county with proper venue in North Carolina. What: A verified petition/estate proceeding to admit a copy of a lost or destroyed will, supported by the copy and affidavits (and any additional witness proof the clerk requires). When: File as soon as practical after death, especially if estate assets need management; hearing dates and local scheduling vary by county.
Notice and hearing: The clerk typically sets a hearing and requires notice to interested persons. If there are heirs whose interests need protection (including minors or unknown parties), the clerk may appoint a guardian ad litem.
Order and letters: If the clerk finds the required elements are met, the clerk enters an order admitting the copy to probate and then issues letters testamentary. If someone formally contests the will (a devisavit vel non challenge), the dispute may move into Superior Court for that contest while the estate administration issues are addressed through the estate proceeding process.

Exceptions & Pitfalls

Presumption of revocation: When an original will was last known to be in the testator’s possession and cannot be found, the clerk may presume it was revoked. Overcoming that presumption usually requires specific facts, not just a copy.
Search proof that is too general: Vague statements like “looked everywhere” often fall short. The clerk usually expects details about where the will was kept, who had access, and what places were searched.
Execution proof gaps: If the will is not self-proved, the clerk may want affidavits from subscribing witnesses or other acceptable proof of proper signing and witnessing. Affidavits from the drafting attorney and notary can help, but the clerk may still require additional proof depending on the circumstances.
Notice/service problems: Failing to properly notify interested persons can delay the hearing or result in an order being challenged later.

Conclusion

In North Carolina, letters testamentary can be issued based on a copy of a will only after the Clerk of Superior Court admits that copy to probate. When the original is missing, the clerk typically requires proof of due execution, proof of the will’s contents, proof of a diligent search, and proof that the will was not revoked. The practical next step is to file (or proceed with) a verified petition with supporting affidavits in the Clerk of Superior Court and be prepared to prove those elements at the scheduled hearing.

Talk to a Probate Attorney

If a North Carolina estate cannot move forward because the original will is missing and only a copy exists, our firm has experienced attorneys who can help explain the proof required, prepare the petition and affidavits, and track the hearing timeline. 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.