How do I compel a personal representative in North Carolina to produce a decedent’s original will?

Detailed Answer

When a decedent’s original will remains out of sight, beneficiaries and other interested parties may worry that the estate administration stalls or that assets go unprotected. North Carolina law requires every personal representative to deliver the decedent’s original will to the Clerk of Superior Court promptly after appointment. If your personal representative refuses or delays, you have clear legal paths to force production.

1. Understand the Legal Duty to File the Will

Under N.C. Gen. Stat. § 28A-6-3, the personal representative must present the decedent’s original will to the clerk within 10 days of appointment. If the will already sat on deposit with the clerk under N.C. Gen. Stat. § 31-12, the clerk issues a certificate to open probate once the decedent dies, but the representative still must produce any later-found originals.

2. Serve a Subpoena Duces Tecum

If the personal representative resists delivering the original, you can use the North Carolina Rules of Civil Procedure. Rule 34 allows you to request production of documents in a lawsuit or in a contested probate matter. Serve the representative with a subpoena duces tecum demanding that the original will appear at a hearing or deposition.

3. File a Motion to Compel with the Clerk of Superior Court

If the representative ignores the subpoena, file a motion to compel production in the county where the estate is pending. In that motion, cite the duty under N.C. Gen. Stat. § 28A-6-3. Ask the clerk to order immediate delivery. The clerk may set a hearing and impose sanctions if the representative still refuses.

4. Seek Sanctions or Removal for Breach of Fiduciary Duty

A personal representative who willfully hides the original will breaches fiduciary duty. You can ask the court to hold the representative in contempt or to remove them under N.C. Gen. Stat. § 28A-12-2. Removal becomes an option if the representative’s conduct prejudices the estate or delays distribution.

5. File a Petition to Probate the Will Directly

If the representative never opens the estate or withholds the will indefinitely, an interested party may file a petition for probate of the will. When you submit the original will to the clerk with the petition, the court treats it as evidence of the decedent’s last wishes and can appoint a new personal representative if necessary.

Key Takeaways

• North Carolina law (N.C. Gen. Stat. § 28A-6-3) requires a personal representative to file the original will within 10 days of appointment.
• Use a subpoena duces tecum under Rule 34 of the North Carolina Rules of Civil Procedure to demand the document.
• File a motion to compel with the Clerk of Superior Court if the representative ignores the subpoena.
• Consider seeking sanctions or removal for breach of fiduciary duty under N.C. Gen. Stat. § 28A-12-2.
• If delays persist, file your own petition to probate the will and ask for appointment of a new personal representative.

Next Steps

Securing the decedent’s original will restores momentum in administering the estate. At Pierce Law Group, our attorneys guide you through each step under North Carolina law. Email us at intake@piercelaw.com or call (919) 341-7055 to schedule a consultation today.