Short Answer

In North Carolina, if you believe a later will exists, you can ask the Clerk of Superior Court to order anyone holding it to produce it. If an older will has already been probated, you can’t simply file the newer will—you must challenge the admitted will by filing a caveat (will contest), generally within three years of probate. Once produced or discovered, the later will (or a copy, if the original is lost) can be addressed through that challenge.

Understanding the Problem

You’re asking how to get a copy of a later will when the Clerk has already accepted an older one. In North Carolina probate, the key question is: can you make the person holding the newer will hand it over, and what do you do after the older will was admitted? Here, a relative already probated an older will and won’t share the updated version your spouse believes exists.

Apply the Law

North Carolina law lets an interested person apply to the Clerk of Superior Court to compel the production of a decedent’s will. If a will has already been probated in common form, it stands unless set aside in a proper proceeding. You cannot collaterally file a different will after one has been admitted; the proper vehicle is a caveat (will contest), filed in the county where the estate is open. The Clerk can order a person in North Carolina who holds the will to bring it in, and the matter of which will controls is then decided in Superior Court through the caveat.

Key Requirements

• Standing: You must be an “interested person,” such as a beneficiary under a later script or an heir affected by the admitted will.
• Compel production: File an affidavit with the Clerk showing facts suggesting a later will exists and that someone in North Carolina has it.
• Forum: File in the Clerk of Superior Court in the county where the estate is pending.
• Challenge window: A caveat to challenge the probated will must generally be filed within three years after probate in common form.
• No collateral probate: After an older will is admitted, a later will or copy can’t just be probated separately—you must use the caveat process.
• Public access: Once a will is probated, it is kept by the Clerk and is a public record, so you may obtain copies from the Clerk’s office.

What the Statutes Say

• N.C. Gen. Stat. § 28A-2A-4 (Compel production of a will) – Clerk may summon a person in North Carolina to produce a decedent’s will.
• N.C. Gen. Stat. § 31-32 (Caveat—who may file and when) – Interested persons may contest a will, generally within three years of probate in common form.
• N.C. Gen. Stat. § 28A-2A-7 (Probate in solemn form) – Contested validity triggers transfer to Superior Court for a caveat proceeding.
• N.C. Gen. Stat. § 28A-2A-13 (Custody of original probated wills) – Original probated wills remain with the Clerk as public records.

Analysis

Apply the Rule to the Facts: Your spouse is an interested person because the admitted older will and any later will could change who inherits the home and land. Because family members refuse to provide the newer will, your spouse can apply to the Clerk to compel its production from anyone in North Carolina believed to hold it (including the family friend). Since an older will has already been probated, your spouse must file a caveat within three years of that probate; the Superior Court will then decide which document (if any) is the true last will.

Process & Timing

1. Who files: Your spouse (as an interested person). Where: Clerk of Superior Court in the county where the estate is open. What: An application by affidavit to compel production of the will (no standard AOC form), and request a certified copy of the already-probated will from the Clerk. When: File the compel-application promptly; the caveat must be filed within three years of the older will’s probate in common form.
2. The Clerk issues a summons ordering the holder to produce the will or state its whereabouts under oath. Service typically follows Rule 4 methods. If the person disobeys, the Clerk may initiate civil contempt, which can include jail until compliance.
3. If a later will or copy surfaces, file a caveat to the admitted will. The Clerk transfers the case to Superior Court for a jury trial on validity. Expect discovery (including subpoenas to uncooperative third parties) and an order determining which instrument controls.

Exceptions & Pitfalls

• Power of attorney ends at death; it does not give post-death authority to obtain or control the will.
• If the holder of the later will is outside North Carolina, the Clerk’s compel order may not reach them; a subpoena in the caveat may be required.
• If only a copy exists and the original can’t be found, North Carolina presumes revocation unless you can prove the will’s due execution, contents, loss not caused by the testator with intent to revoke, and diligent search.
• If the “later document” is a codicil (amendment), it may be handled differently; ask the Clerk about procedure before assuming a caveat is required.
• Don’t conflate non-probate assets (like life insurance with named beneficiaries) with the will—those typically pass by contract, not by the will.

Talk to a Probate Attorney

If you’re dealing with a later will that family members won’t produce after an older will was probated, 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.