How to File Probate in the Correct County and Proceed When a Will Is Missing in North Carolina

Detailed Answer

When someone dies in North Carolina, you must open probate in the county where the decedent lived at the time of death. Under N.C. Gen. Stat. § 28A-2-1 and § 28A-2-2, the clerk of superior court in that county handles the probate proceeding. Domicile means the decedent’s principal, permanent home at death. You look at factors such as where the decedent voted, paid taxes and held a driver’s license.

To start, file a petition for probate of will or administration without a will. Provide a certified copy of the death certificate. Pay the required filing fee. If there is a will, submit the original. The clerk reviews it and issues letters testamentary (with will) or letters of administration (no will).

When the original will is missing, North Carolina law allows you to prove and admit a lost or destroyed will. Under N.C. Gen. Stat. § 28A-2-3, you must show by clear, convincing and unequivocal evidence:

• The will was duly executed. Usually signatures of the testator and two witnesses appear in the correct form.
• The will is missing because of loss or destruction, not revocation.
• No one has the will or anyone holding it refuses to deliver it.

Evidence may include witness testimony or a copy of the will. Witnesses who saw the testator sign can swear to proper execution. If no witnesses are available, you can submit a photocopy and provide secondary evidence explaining why the original is lost.

Once you prove the will, the clerk admits it and issues letters testamentary. From there, you follow standard administration steps: inventory assets, notify heirs and creditors, pay debts and taxes, and distribute property under the will.

Key Takeaways

• File probate in the county of the decedent’s last domicile (N.C. Gen. Stat. § 28A-2-1).
• Submit a petition, death certificate and pay filing fees.
• If the will is missing, prove due execution and loss under N.C. Gen. Stat. § 28A-2-3.
• Use attesting witnesses or secondary evidence when the original will cannot be located.
• After admission, follow probate steps: inventory, notices, debts, taxes and distribution.

Next Steps and Call to Action

Probate can feel complex. You can rely on Pierce Law Group’s experience in North Carolina probate. Our attorneys guide you through filing in the correct county and handling a missing will. Contact us with your questions and let us handle the process efficiently for you.

Email us at intake@piercelaw.com or call (919) 341-7055 to get started.