Short Answer

Yes. In North Carolina, you must first ask the Clerk of Superior Court to compel the person holding the will to produce it. If the original cannot be produced after a diligent search, you can ask the clerk to probate a copy as a “lost or destroyed” will by providing clear, strong, and convincing evidence of the will’s execution, contents, and that it wasn’t revoked.

Understanding the Problem

This question sits squarely in North Carolina probate. You want to know if you can move forward when someone won’t hand over the original will. Here, you already have a hearing in the Clerk of Superior Court to compel production based on a sworn affidavit. If the original still isn’t produced, you are considering offering a copy for probate.

Apply the Law

North Carolina law requires the will’s custodian to produce it when the clerk orders production. The clerk of superior court has original jurisdiction over probate. If the original can’t be produced, the clerk can hear a petition to probate a lost or destroyed will. To admit a copy, the propounder must present clear, strong, and convincing evidence of: (1) the decedent’s death; (2) proper execution of the original will; (3) the will’s contents; (4) that the original was lost or destroyed without the decedent’s intent to revoke; and (5) that a diligent search has been made. If the original was last seen in the decedent’s possession and is missing, a rebuttable presumption of revocation applies, which you can overcome with facts showing loss or destruction not caused by the decedent or the decedent’s direction. The forum is the Clerk of Superior Court in the county where probate is opened. There’s generally no deadline to offer a will, but there are time-sensitive protections for purchasers and lien creditors if probate occurs later.

Key Requirements

• Death: Show the decedent has died (death certificate or other acceptable proof).
• Proper execution: Prove the original will met North Carolina execution rules (or other valid-law ground); witness affidavits or best available evidence may be used if witnesses are unavailable.
• Contents: Establish what the will said; a copy is good evidence but not required.
• No revocation: Prove the will wasn’t destroyed by the decedent with intent to revoke; address any presumption if the original was last in the decedent’s possession.
• Diligent search: Describe a good-faith, thorough search in places where the original would likely be found.
• Custodian production: Before resorting to a copy, apply by affidavit asking the clerk to summon the person holding the will to produce it or explain under oath what happened to it.

What the Statutes Say

• N.C. Gen. Stat. § 28A-2A-4 (Compel production of will) – Clerk may summon the person believed to have the will to produce it or state under oath its location/disposition.
• N.C. Gen. Stat. § 31-3.3 (Execution of attested written will) – Sets the formal signing and witnessing requirements your proof must establish.
• N.C. Gen. Stat. § 31-32 (Caveat timing) – An interested party may generally challenge a will within three years after probate in common form.
• N.C. Gen. Stat. § 31-39 (Effect of late probate) – Protects purchasers and lien creditors if a will is probated after certain time thresholds.

Analysis

Apply the Rule to the Facts: You have already sought an order to compel the custodian to produce the original or explain under oath what happened. If they do not produce it, you can offer the copy and supporting evidence. You will need to show the original was properly executed, what the will said, and that the original was lost or destroyed without the decedent’s intent to revoke. Be prepared to describe a diligent search and to address any presumption of revocation if the will was last with the decedent.

Process & Timing

1. Who files: The named executor or any interested person. Where: Clerk of Superior Court in the North Carolina county where probate will be opened (typically the decedent’s domicile). What: First, an application by affidavit to compel production of the will (no preprinted AOC form); then, if needed, an application to probate the will in common form with supporting affidavits to prove a lost or destroyed will (use AOC‑E‑201, plus witness or other affidavits as available). When: Start promptly after death; if the named executor does not apply within 60 days, any interested person may apply on 10 days’ notice.
2. The clerk issues a summons to the person believed to hold the will to produce it or explain under oath where it is or how it was disposed of. Hearings may be continued for good cause (for example, medical unavailability), and timelines can vary by county.
3. If the original is not produced, the clerk may receive your evidence to probate the copy as a lost or destroyed will. If admitted in common form, the clerk issues a Certificate of Probate and retains the probated will in the court file. Administration or collection steps can follow as appropriate.

Exceptions & Pitfalls

• Presumption of revocation applies if the original was last in the decedent’s possession and is missing; rebut with facts showing loss/destruction without the decedent’s intent or that a third party had custody.
• Original signatures are required to probate an attested will; a copy can be used only through the lost/destroyed will process.
• Provide a detailed, good-faith search description; weak search efforts can sink a lost-will request.
• After common-form probate, an interested party can generally file a caveat within three years; consider solemn-form probate if you need finality and proper notice.
• Concealing or destroying a will can have criminal consequences; the clerk can compel production under oath.

Talk to a Probate Attorney

If you’re dealing with a missing original will and a custodian who won’t produce it, 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.