Short Answer

In North Carolina, you can ask the Clerk of Superior Court to compel anyone holding the will to produce it and, if the original truly cannot be found, you may petition to probate a copy or prove a “lost” will. To admit a lost will, you must present clear, strong, and convincing evidence of due execution, the contents, that it wasn’t revoked, and that you conducted a diligent search. If contested, the case moves to Superior Court for a caveat proceeding.

Understanding the Problem

You want to know whether you can force production or probate a will when the original is missing or withheld so you can resolve who owns your parent’s vacant land in North Carolina. Here, the land is currently co-owned by you and the surviving spouse, and you want clear title to proceed without co-ownership.

Apply the Law

North Carolina’s Clerk of Superior Court has original, exclusive jurisdiction over probate. If a will exists but is being withheld, you can file an application by affidavit asking the Clerk to order the person to produce it. If the original cannot be found, North Carolina allows probate of a lost or destroyed will if the propounder meets a high evidentiary standard. A missing original last seen with the testator creates a rebuttable presumption of revocation; evidence that someone else held the will or that it was lost without the testator’s intent can overcome that presumption.

Key Requirements

• Due execution: Show the will was properly signed and witnessed; use witness affidavits or other competent proof if witnesses are unavailable.
• Contents: Prove what the will said; a copy helps but is not required—credible testimony can suffice.
• No revocation by testator: Offer facts showing the will wasn’t destroyed by (or at the direction of) the testator with intent to revoke.
• Diligent search: Demonstrate a good-faith, thorough search where the will would likely be found.
• Death: Provide acceptable proof of death so the Clerk can exercise probate jurisdiction.

What the Statutes Say

• N.C. Gen. Stat. § 28A-2A-4 (Compel production of a will) – Clerk may summon a person to produce a decedent’s will or disclose its whereabouts.
• N.C. Gen. Stat. § 28A-2A-2 (Who may apply for probate) – If the executor doesn’t act within 60 days, any interested person may apply after 10 days’ notice.
• N.C. Gen. Stat. § 28A-2A-8 (Proving an attested will) – Sets out acceptable proofs and alternatives if witnesses are unavailable.
• N.C. Gen. Stat. § 14-77 (Concealment or destruction of a will) – Criminalizes stealing, concealing, or destroying a will.

Analysis

Apply the Rule to the Facts: Because you and the surviving spouse now co-own the land, the first question is whether a will changes that result. If you can show due execution and contents (via a copy or witness affidavits), prove a diligent search, and present facts that the will wasn’t revoked (especially if it was last in someone else’s custody), the Clerk can admit a lost will. If admitted and the will devises the land to you alone, title may shift and a partition case could become unnecessary; if not, a partition or negotiated deed remains the path to end co-ownership.

Process & Timing

1. Who files: You (as an interested beneficiary/heir). Where: Clerk of Superior Court in the county where your parent was domiciled. What: (a) Application by affidavit to compel production of the will; (b) Application for probate (AOC-E-201 or AOC-E-199) with witness affidavits (AOC-E-300/AOC-E-301) and any copy of the will. When: If the named executor hasn’t applied within 60 days, you may apply after giving 10 days’ notice to the executor.
2. The Clerk issues a summons to produce the will. If the original remains missing, the Clerk schedules a hearing on your petition to prove a lost will. If anyone contests validity, the matter transfers to Superior Court as a caveat.
3. If admitted, the Clerk issues a Certificate of Probate (AOC-E-304). Record certified copies as needed, update title, then decide whether a partition is still needed. Separately, open the estate to obtain letters if required to access the out-of-state bank account.

Exceptions & Pitfalls

• Presumption of revocation: If the original was last seen in the testator’s possession and is missing, the law presumes revocation—be ready with facts showing loss without the testator’s intent.
• Custody matters: Evidence that a third party (including a surviving spouse) had custody when it went missing can rebut the revocation presumption.
• Diligent search: Document where you searched and why; weak searches sink lost-will petitions.
• Contests transfer the case: A challenge sends the dispute to Superior Court; plan for discovery and extra time.
• Parallel property issues: Partition can proceed, but resolving the will first often avoids wasted costs if title will change.

Talk to a Partition Action Attorney

If you’re facing co-ownership because a will is missing and need to determine title before pursuing partition or a deed transfer, our firm has experienced attorneys who can help you understand your options and timelines. 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.