Jan262026
Probate Q&A Series

Can I sue a co-executor for hiding a will or not filing it for probate when they were supposed to? – North Carolina

Short Answer

Possibly, but in North Carolina the fastest and most common first step is usually to involve the Clerk of Superior Court (the estate court) to get the will produced and the estate opened correctly. North Carolina law also makes it a crime to fraudulently conceal or destroy a will, and the probate court can address executor misconduct through estate remedies. A separate civil lawsuit may be appropriate if the delay or concealment caused measurable harm, but many disputes can be addressed inside the estate file first.

Understanding the Problem

In North Carolina probate, the key question is whether a co-executor (or a person holding the original will) failed to present the will to the Clerk of Superior Court for probate when the will should have been presented, or intentionally kept the will from being found. This issue often shows up when family members cannot agree on who owns inherited real property and someone threatens a partition action before the estate paperwork is in order. The practical problem is that title to real property and who has authority to act can stay unclear until the will is properly handled in the county estate file.

Apply the Law

North Carolina estates are supervised by the Clerk of Superior Court in the county where the estate is opened. When a will exists, getting it before the Clerk and properly probated is often the gateway step that clarifies who inherits and who has authority to manage estate property. North Carolina law also provides a backstop if the named executor does not move the probate process forward within a set time after death, and it separately criminalizes fraudulent concealment or destruction of a will.

Key Requirements

  • There must be a will (or a credible basis to believe one exists): The issue is not just delay; it is whether an original will exists and is being withheld or not presented to the Clerk for probate.
  • A duty-triggering role or control of the document: Liability questions usually turn on whether the person is the named executor or otherwise had custody/control of the will and failed to present it when required.
  • Harm and causation (for a civil lawsuit): To recover money damages in a separate lawsuit, it generally must be shown that the concealment or delay caused a real loss (for example, litigation costs, lost sale opportunities, or other measurable damages tied to the misconduct), not just family conflict.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a family dispute over inherited real property and a relative threatening a partition action after sending a short deadline letter. If the will has not been presented to the Clerk of Superior Court, ownership may remain disputed because the will has not been probated and the estate may not have a qualified personal representative to manage or transfer title. If a co-executor (or another person) is holding the original will and not presenting it, North Carolina law provides a direct path for an interested person to move probate forward after the statutory waiting period and, in more serious situations, the conduct may also support misconduct remedies in the estate and potentially a separate civil claim if damages can be proven.

Process & Timing

  1. Who files: Any devisee named in the will or other person interested in the estate. Where: The Clerk of Superior Court (Estates) in the county where the estate should be opened. What: An application to probate the will (and, if needed, a request that the Clerk require production of the will or address noncooperation). When: If the named executor has not presented the will for probate within 60 days after death, an interested person can apply to probate the will after giving the required notice. See N.C. Gen. Stat. § 28A-2A-2.
  2. Next step: Once the will is offered, the Clerk addresses probate/qualification issues. If there is concern about wrongdoing, the estate file is also the place to ask for court oversight, including orders that protect estate property and require proper administration. Timing can vary by county and by whether the will is self-proved, contested, or missing, but the goal is to get an estate file opened so authority and ownership can be clarified.
  3. Final step: After the will is properly probated and a personal representative is qualified (or the will is probated without qualification when appropriate), the estate can take the steps needed to address real property title and respond to related litigation pressure (including partition threats) based on the correct ownership interests.

Exceptions & Pitfalls

  • “Suing” may not be the fastest fix: When the immediate problem is unclear title to inherited real property, the most practical first move is often getting the will before the Clerk and the estate properly opened, rather than starting with a separate damages lawsuit.
  • A caveat cannot be filed until there is a probated will: If the dispute is really about whether the will is valid, the will generally must be probated before a caveat (will contest) can proceed, and the caveat deadline is tied to the probate date. See N.C. Gen. Stat. § 31-32.
  • Missing will issues require proof: If the original will cannot be located, the estate may need additional proof and a specific procedure to probate a copy or establish the will’s contents. That can take time, and it is a common place where families lose momentum if they do not gather witnesses and document history early.
  • Criminal statute vs. civil recovery: Fraudulent concealment of a will can be a crime under North Carolina law, but a criminal charge does not automatically resolve title or pay damages. Estate-court remedies and civil claims still require proper filings and proof. See N.C. Gen. Stat. § 14-77.
  • Partition pressure does not replace probate: A threatened partition action can escalate quickly, but it does not fix the underlying probate question of who owns what. When ownership is disputed, it often helps to first clarify the estate status and title path. Related reading: what happens if some family members want to sell the entire property.

Conclusion

In North Carolina, a co-executor (or anyone holding a will) can create serious legal problems by fraudulently concealing a will or by failing to move probate forward when required. Often, the most effective first step is to get the will before the Clerk of Superior Court and open the estate correctly, because that is what clarifies authority and inherited real-property ownership. If the named executor has not presented the will within 60 days after death, an interested person can apply to probate the will after giving notice under G.S. 28A-2A-2.

Talk to a Probate Attorney

If a family dispute over inherited real property is being made worse by a will that is not being filed for probate, our firm has experienced attorneys who can help explain the probate process, possible court remedies, and the timelines that matter. 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.