Detailed Answer
When a decedent’s will names the surviving spouse as executor but the spouse refuses to file it, heirship can delay estate administration. North Carolina law provides a clear path for heirs to step in and open probate so the estate can move forward.
First, an heir should file a Petition for Administration with Will Annexed in the county clerk’s office where the decedent lived. Under N.C. Gen. Stat. § 28A-6-2(a), priority to serve moves to the next qualified person if the nominated executor fails or refuses to qualify within 30 days of the will’s probate filing date.
Second, if the surviving spouse has the original will and won’t submit it, an heir can seek a court order to compel delivery under N.C. Gen. Stat. § 31-6(b). This statute requires anyone in custody of a will to exhibit and deliver it on demand. If the spouse still withholds the will, the court may hold them in contempt or impose sanctions.
Third, if the original will remains unavailable, the heir can attach a certified copy or carbon copy to the administration petition. North Carolina law permits admitting a copy when the original cannot be found, provided the petitioner shows reasonable efforts to obtain it. See N.C. Gen. Stat. § 28A-8-4(a).
At the hearing, the clerk reviews the petition, verifies notice to interested parties and confirms no qualified executor has stepped forward. If all requirements are met, the clerk issues Letters of Administration with Will Annexed. The appointed administrator carries out the decedent’s wishes under the will just as an executor would.
Key steps for heirs:
- File a petition for administration with the will annexed in the decedent’s county of residence.
- Request court assistance to compel the surviving spouse to deliver the original will.
- Provide proof of diligent search if only a copy of the will is available.
- Attend the hearing and demonstrate that the nominated executor failed to qualify.
- Obtain Letters of Administration with Will Annexed and proceed with probate.
Key Takeaways
- Heirs may petition for administration with will annexed if the executor named in the will refuses to act.
- N.C. Gen. Stat. § 28A-6-2 sets out who qualifies to open probate when an executor won’t serve.
- N.C. Gen. Stat. § 31-6 allows the court to order delivery of a will held by another person.
- If the original will is unavailable, a copy may be admitted under N.C. Gen. Stat. § 28A-8-4.
- Once appointed, the administrator with will annexed carries out the decedent’s instructions in the will.
Probate delays can leave assets in limbo and tie up family matters. At Pierce Law Group, our attorneys guide heirs through every step of opening an estate when an executor won’t cooperate. Contact us today to get probate moving again. Email us at intake@piercelaw.com or call (919) 341-7055.
