How can I find the original will if I only suspect one exists and don’t know where it’s kept? – North Carolina

Short Answer

In North Carolina, the most practical way to find an original will is to run a structured search of the places a will is commonly stored and to ask the Clerk of Superior Court whether the will was deposited for safekeeping during the decedent’s lifetime. If the original cannot be located, the estate may still be able to move forward either as an intestate estate (no will) or through a court process to admit a copy of a lost or destroyed will when the required proof exists. Acting promptly matters because North Carolina has timing rules tied to presenting a will for probate after death.

Understanding the Problem

In North Carolina probate, a common starting question is: can an original will be found when only a possible will is suspected, and the storage location is unknown? The issue usually comes up when a family member or potential personal representative needs to start the estate process but cannot locate the signed original document. The key decision point is whether an original will can be located with a reasonable search so it can be delivered to the Clerk of Superior Court for probate in the county where the decedent lived.

Apply the Law

North Carolina law allows living people to deposit wills with the Clerk of Superior Court for safekeeping, which makes the Clerk’s office one of the places to check when a will cannot be found elsewhere. After death, North Carolina probate is handled through the Clerk of Superior Court (Estates division) in the county where the decedent was domiciled, and the original will is normally needed to open a testate estate. If the original cannot be found, North Carolina procedures may still allow a copy of a lost or destroyed will to be admitted in an estate proceeding when the will’s execution and contents can be proven and the absence of the original is satisfactorily explained, including proof of a diligent search.

Key Requirements

Diligent search and inquiry: The search should focus on the locations where the original will would most likely be kept and should be documented so it can be described to the Clerk or the court if needed.
Check Clerk deposits and common repositories: The search typically includes the Clerk of Superior Court’s will depository, the decedent’s home papers, safe deposit box records/inventory, and the lawyer’s office that may have drafted or stored the will.
Act within the probate timing framework: If a will exists, the named executor is expected to present it for probate promptly; if the executor does not act within 60 days after death, other interested persons may seek probate after giving notice to the named executor.

What the Statutes Say

N.C. Gen. Stat. § 31-11 (Will depository at Clerk of Superior Court) – Requires each county clerk to maintain a secure depository where living persons may file a will for safekeeping; access during life is limited to the testator (or authorized agent).

Analysis

Apply the Rule to the Facts: The facts describe a situation where a will is only suspected and its location is unknown. Under North Carolina practice, the best next step is a documented diligent search of the places where a will is commonly stored, including asking the Clerk of Superior Court whether a will was deposited for safekeeping and checking for a safe deposit box that may require an inventory process to locate testamentary papers. If the original still cannot be found, the estate may need to proceed without it (as an intestate estate) or consider an estate proceeding to admit a copy of a lost will if a copy exists and the legal proof can be gathered.

Process & Timing

Who files: A person with standing to start the estate (often the person named as executor in the suspected will, or an heir if no executor is available). Where: Clerk of Superior Court (Estates) in the North Carolina county where the decedent was domiciled. What: A request to search the Clerk’s will depository/manual records (county practice varies) and, once located, submission of the original will for probate. When: Present the will to the Clerk as soon as reasonably possible; if the named executor does not present the will within 60 days after death, other interested persons may apply for probate after giving required notice to the named executor.
Search steps while preparing to file: Collect keys and access information for the decedent’s home records; identify any bank safe deposit box; contact any lawyer or law office the decedent used for estate planning; check personal files for later wills or codicils (amendments). If a safe deposit box may contain the will, coordinate the statutory inventory process with the institution and the Clerk, since some Clerks require an inventory before qualification.
If the original is not found: Evaluate whether a copy exists and whether witnesses or other proof can support a lost-will proceeding, or whether the estate should move forward as intestate. The end point is either (a) probate of the original will and issuance of letters to the personal representative, or (b) administration without a will, depending on what the search and evidence support.

Exceptions & Pitfalls

Assuming no will too quickly: North Carolina courts often expect a diligent, targeted search before treating the estate as intestate, especially if there are clues the decedent executed a will.
Safe deposit box delays: Accessing a safe deposit box after death can require a formal inventory procedure and coordination with the Clerk and the financial institution, and a premature opening can create delays and extra documentation requirements.
Lost-will proof problems: When an original will is missing, the law may treat the absence as evidence of revocation unless the absence is convincingly explained. A copy alone may not be enough without proof of due execution, contents, loss, and a diligent search.
Local procedure varies: Clerks’ offices can differ on how they handle depository searches, documentation, and scheduling for inventories, so early contact with the Estates division can prevent wasted time.

Conclusion

In North Carolina, the original will is usually required to open a testate estate, so the first step is a documented, diligent search of the most likely repositories, including a request to the Clerk of Superior Court to check whether a will was deposited for safekeeping. If the original still cannot be found, the estate may need to proceed as intestate or pursue a lost-will proceeding if a copy and proof exist. Next step: request a will-depository search through the Clerk of Superior Court in the county of domicile and continue the search immediately.

Talk to a Probate Attorney

If a suspected North Carolina will cannot be located and probate needs to start, our firm has experienced attorneys who can help explain the search steps, what to document, and the options if the original never turns up. 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.