How can I confirm whether a will exists or get a copy if the surviving spouse says it can’t be found? – North Carolina

Short Answer

In North Carolina, the most direct way to confirm whether a will exists is to check with the Clerk of Superior Court in the county where the person lived at death to see whether a will has been filed for probate or was deposited for safekeeping during life. If a will was filed, it becomes a public record and copies can be requested from the Clerk.

If the original will cannot be found, it may still be possible to ask the Clerk to probate a copy as a “lost will,” but that typically requires proof of the will’s execution and contents, proof of a diligent search, and proof that the will was not revoked.

Understanding the Problem

When a parent dies in North Carolina and the surviving spouse says a will cannot be found, the key question becomes: can a child confirm whether a will exists in the court system and, if the original is missing, can a copy still be used? The issue usually turns on whether the will was ever deposited with the Clerk of Superior Court for safekeeping, whether anyone has filed the will (or a copy) with the estate, and what can be proven if the original document is missing.

Apply the Law

North Carolina probate matters are handled through the Clerk of Superior Court. If a will is filed with the Clerk (either for probate or simply filed), it becomes part of the estate records and is generally accessible as a public record. Separately, North Carolina allows living people to deposit their wills with the Clerk for safekeeping; that deposited will is not available to the public while the person is alive, but it can be located after death and offered for probate.

If the original will cannot be located after death, North Carolina law may allow probate of a copy in a “lost will” proceeding, but the court will typically require detailed proof that the will was properly signed and witnessed, what it said, that it was lost or destroyed, that the loss was not due to the person revoking it, and that there was a diligent search in the places the will would most likely be found.

Key Requirements

Clerk record check: Confirm whether a will has already been filed in the estate file (or deposited for safekeeping) with the Clerk of Superior Court.
Proof of the will (if no original exists): Show due execution (proper signing and witnessing) and prove the contents (often through a copy and witness testimony or affidavits).
Overcome the “revocation” concern: Account for why the original is missing by showing a diligent search and evidence that the missing original does not mean the will was intentionally revoked.

What the Statutes Say

N.C. Gen. Stat. § 31-11 (Wills deposited with Clerk for safekeeping) – Requires each county Clerk of Superior Court to maintain a will depository and limits access before death.
N.C. Gen. Stat. § 31-32 (Caveat; timing) – Allows an interested person to file a caveat to challenge a will within three years after probate in common form.

Analysis

Apply the Rule to the Facts: Here, a child believes a will leaves shares of a house to the children, but the surviving spouse denies knowing about it and the original cannot be found. Under North Carolina practice, the first step is usually confirming whether any will was deposited or filed with the Clerk of Superior Court, because a filed will is typically obtainable as a court record. If nothing is on file, the next question becomes whether any reliable copy exists (for example, a photocopy, a scan, or the drafting lawyer’s copy) and whether there is enough proof of proper signing/witnessing, the will’s contents, a diligent search, and circumstances showing the missing original does not mean revocation.

Process & Timing

Who files: Any interested person (often a child/heir or a named executor) can start the process to locate and, if appropriate, offer a will (or copy) for probate. Where: Clerk of Superior Court in the North Carolina county where the decedent was domiciled at death (and for real estate issues, the county where the property is located may also matter for recording and title). What: Request a search of the estate file for any will already filed and request that the Clerk conduct a manual search for any will deposited for safekeeping. When: As soon as possible after death, because estate administration and title issues often stall without probate.
If a will is found on file: Request a certified copy from the Clerk’s office. If the will has been probated, the estate file may also show who qualified (if anyone) and what notices and deadlines may be running.
If no original will can be found but a copy exists: File a court proceeding with the Clerk to seek probate of a lost will copy, typically supported by a verified petition and evidence (witness affidavits/testimony, the copy, and details of the search and circumstances). Interested parties generally must be served and may oppose the request, which can lead to a hearing and, in some disputes, transfer to Superior Court.

Exceptions & Pitfalls

No public access to a deposited will before death: A will deposited for safekeeping with the Clerk is not open for inspection while the testator is alive; after death, it can be located and offered for probate through the proper process.
“Missing original” problem: When an original will was last known to be in the decedent’s possession and cannot be found, courts may treat that as evidence the will was revoked. A lost-will case usually needs specific evidence and a documented, diligent search to address that concern.
Inadequate proof of execution: Even with a copy, the Clerk typically needs proof the will was properly signed and witnessed. If witnesses cannot be found, the proof issues can become more complicated and may require additional evidence.
Notice and service mistakes: A lost-will proceeding typically requires bringing in all “interested parties.” Missing someone who would inherit without the will can delay the case and trigger service problems.
Waiting too long to act: Delays can increase conflict over house possession, repairs, taxes, and sales decisions. Also, once probate occurs, caveat deadlines can start running.

Conclusion

In North Carolina, confirming whether a will exists usually starts with the Clerk of Superior Court: check the estate file for any will already filed and request a manual search to see whether the decedent deposited a will for safekeeping. If a filed will exists, a copy can be requested from the Clerk as a public record. If the original cannot be found, a copy may still be probated as a lost will, but it generally requires proof of execution, contents, diligent search, and non-revocation. The next step is to request the Clerk search and, if needed, file the lost-will petition promptly.

Talk to a Probate Attorney

If a parent died in North Carolina and a surviving spouse says the will cannot be found, our firm has experienced attorneys who can help locate the court record, evaluate whether a copy can be probated as a lost will, and map out deadlines and next steps. 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.