Short Answer

In North Carolina, you can file an application by affidavit with the Clerk of Superior Court to require the person holding the will to produce the original. The Clerk issues a summons ordering production by a date certain, and noncompliance can lead to civil contempt. If the original cannot be produced, you may ask the Clerk to probate a copy as a lost or destroyed will. You can also request a temporary order to prevent any marketing or sale of property until the will issue is resolved.

Understanding the Problem

You’re asking how, in North Carolina probate, you can make the administrator bring in the original will so nothing is listed or sold before the will question is decided. You are an interested party who has a copy of the will and need the original produced. Your goal is to move the Clerk of Superior Court to order production and, if necessary, to hear the probate of the copy at the same time to save time and cost.

Apply the Law

North Carolina law lets an interested person start a proceeding before the Clerk of Superior Court to compel production of a decedent’s will. You do this by filing an affidavit showing (1) a will exists and (2) someone in North Carolina has or likely had it. The Clerk then issues a summons directing that person to bring the will to the Clerk’s office for probate or swear to its whereabouts or disposition. Service generally follows the civil summons rules. If the original cannot be produced, the Clerk can hear a petition to probate a copy as a lost or destroyed will, which requires strong proof of due execution, the will’s contents, and that the will wasn’t destroyed by the testator with intent to revoke. If any sale risk exists, you can seek a short-term injunction to preserve estate assets pending the will ruling.

Key Requirements

• Affidavit to compel: File an application by affidavit with the Clerk stating facts that a last will exists and identifying the likely custodian in North Carolina.
• Summons and service: Ask the Clerk to issue a summons ordering production by a specific date; serve it under the civil rules. A Rule 45 subpoena duces tecum can also be used to require the custodian to bring the original to court.
• Civil contempt backstop: If the custodian disobeys the order without excuse, the Clerk can initiate civil contempt to compel compliance. A sworn statement explaining loss/transfer can satisfy the order if true.
• Probate of a copy (if needed): If the original is unavailable, file to probate the copy as a lost/destroyed will with evidence of due execution, the contents, and that it wasn’t revoked by the testator.
• Asset freeze: Request a temporary restraining order or injunction under the estate proceeding rules to stop marketing or sales until the will is resolved.

What the Statutes Say

• N.C. Gen. Stat. § 28A-2A-4 (Compel production of will) – Clerk may summon custodian to produce the will or swear to its whereabouts; enforceable by contempt.
• N.C. Gen. Stat. § 28A-2-6 (Estate proceeding procedure) – Sets filing, service (including Rule 4), and application of certain civil rules (including Rules 45 and 65).
• N.C. Gen. Stat. § 28A-2A-7 (Probate in solemn form; transfer) – If validity is contested, transfer to Superior Court for caveat.
• N.C. Gen. Stat. § 1A-1 (Rule 4 service) – Service methods for summons and petitions in estate proceedings.

Analysis

Apply the Rule to the Facts: You are an interested party who has a copy of the will and need the original. File an affidavit with the Clerk stating the will exists and the administrator (or another custodian) likely has or had it, and request a summons setting a production date. Because property can’t be marketed or sold pending resolution, also move for a short-term injunction to preserve the status quo. If the original isn’t produced, be ready to proceed on your petition to probate the copy, supplying proof of execution, contents, and nonrevocation.

Process & Timing

1. Who files: An interested person. Where: Clerk of Superior Court in the county of the decedent’s domicile. What: (a) Application by affidavit to compel production of the will; (b) Petition to probate the will (or the copy) using available AOC forms (e.g., AOC-E-201) and witness affidavits if needed; (c) Motion for temporary restraining order/injunction. When: File promptly; the Clerk’s summons will set a specific production date.
2. Serve the Clerk-issued summons (and any petition) under Rule 4. If needed, issue a Rule 45 subpoena duces tecum for the original will. Expect the Clerk to set a hearing; request that the compel hearing and the probate of the copy be heard together or sequentially to save cost and time (local practice may vary).
3. If produced, the original can be probated. If not, the Clerk can proceed on your lost/destroyed will petition. The outcome is a Certificate of Probate and, if qualification is sought, issuance or modification of letters to the proper personal representative.

Exceptions & Pitfalls

• If the original was last in the testator’s possession and can’t be found, North Carolina presumes revocation; be prepared with facts that rebut that presumption when probating a copy.
• Service mistakes (not using Rule 4) can delay enforcement; make sure the Clerk’s summons and your petitions are served correctly.
• A custodian can comply by sworn statement if they no longer have the will; contempt isn’t available if compliance is impossible.
• If anyone challenges validity, the Clerk must transfer to Superior Court for a caveat; plan for that possibility when scheduling combined hearings.
• County practices differ on consolidating or stacking hearings; ask the Clerk to coordinate the compel proceeding and the probate petition on the same docket.

Talk to a Probate Attorney

If you’re trying to force production of a will and keep property off the market until the will is resolved, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-555-0100.

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.