Dec202025
Probate Q&A Series

How can I get a court to admit a copy of a lost will when the original can’t be found? – North Carolina

Short Answer

In North Carolina, a Clerk of Superior Court can admit a copy of a will when the original cannot be found, but only after the person offering the copy proves specific facts to overcome the usual presumption that a missing original will was revoked. The propounder typically files a verified petition in an estate proceeding and presents clear, strong, and convincing evidence of proper execution, the will’s contents, that the will was lost or destroyed, that it was not revoked, and that a diligent search was made. If the clerk admits the copy to probate, the clerk may then issue letters testamentary.

Understanding the Problem

In North Carolina probate, the core question is: when an executor or other interested person has only a copy of a will because the signed original cannot be located, can the Clerk of Superior Court still treat that copy as the decedent’s will and issue letters testamentary? The decision point usually turns on whether the missing original can be accounted for in a way that rebuts the idea that the decedent intentionally revoked it. The setting is a probate hearing in the county where the decedent was domiciled at death, and the requested relief is an order admitting the copy to probate so the estate can be administered as a testate estate.

Apply the Law

North Carolina allows probate of a “lost or destroyed” will through an estate proceeding in front of the Clerk of Superior Court. Because the original will is missing, North Carolina law generally presumes the will was revoked if it was last known to be in the testator’s possession and cannot be found after death. To admit a copy anyway, the person offering it must present evidence that accounts for the missing original and proves the will’s validity and contents. In practice, the clerk will expect a verified petition, sworn witness evidence (live or by affidavit when allowed), and proof of a diligent search in the places the original would most likely be found.

Key Requirements

  • Due execution: Proof the original will was signed and witnessed in the way North Carolina law requires for an attested written will (usually the testator plus two competent witnesses).
  • Contents of the will: Proof of what the will said, typically by presenting the copy itself and connecting it to the will that was executed.
  • Loss or destruction and diligent search: Proof the original cannot be found after a careful, documented search and inquiry in the locations it would most likely be kept.
  • No revocation intent: Proof the original was not destroyed by the testator (or at the testator’s direction) with intent to revoke; this is the key point for rebutting the presumption of revocation.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The affidavits from the drafting attorney and notary can help establish due execution, especially if one or both attesting witnesses cannot be located or are unavailable. The filed copy addresses the contents element by showing what the will says and who was nominated as executor. The documented efforts to contact the clerk, the drafting attorney, and to search with law enforcement support the diligent search element and also help explain why the original is missing. The fact that a relative and heir controls access to the house where the will was kept is often relevant to the no revocation intent element because it provides an alternative explanation for the will’s disappearance other than revocation.

Process & Timing

  1. Who files: Usually the named executor in the copy of the will, or another “interested person.” Where: The Clerk of Superior Court (Estates division) in the North Carolina county where the decedent was domiciled at death. What: A verified petition (sworn to under oath) asking to admit a copy of a lost or destroyed will to probate, attaching the copy and supporting affidavits, plus a civil summons and estate action cover sheet if the matter proceeds as an estate proceeding against interested parties. When: As soon as possible after death, especially if assets require probate authority to manage.
  2. Service and notice: Serve all heirs and other interested parties who would take under intestacy (and any other necessary parties) under the North Carolina civil service rules. If a necessary party cannot be located, the court may require additional steps, including appointment of a guardian ad litem in some situations.
  3. Hearing and order: At the hearing, present the copy plus sworn testimony/affidavits establishing the required elements. If the clerk is satisfied, the clerk enters an order admitting the copy to probate and can then issue letters testamentary so the personal representative can act for the estate.

Exceptions & Pitfalls

  • Presumption of revocation: The biggest hurdle is the presumption that the testator revoked the will when the original cannot be found. The proof must explain the loss in a way that persuasively points away from intentional revocation.
  • Weak search record: A general statement that “the will can’t be found” is usually not enough. Clerks typically expect a detailed search description: who searched, where, when, and what was checked (home locations, safe-deposit arrangements, attorney file, prior clerk deposits, etc.).
  • Execution proof gaps: If attesting witnesses are available, the clerk may expect their affidavits or testimony. If witnesses are unavailable, the petition should explain why and offer the best other competent evidence (for example, drafting attorney testimony about the signing ceremony).
  • Service problems: Failing to properly identify and serve all intestate heirs and other required parties can delay the hearing or risk later challenges.
  • Caveat risk: A hostile heir may file a caveat, which changes the forum and procedure and can turn the case into a full Superior Court will contest with different deadlines and litigation steps.

Conclusion

In North Carolina, the Clerk of Superior Court can admit a copy of a lost will, but the person offering the copy must prove (with clear, strong, and convincing evidence) that the will was properly executed, what it said, that the original was lost or destroyed, that the loss was not a revocation, and that a diligent search was made. The practical next step is to file a verified petition with the Clerk of Superior Court in the decedent’s county of domicile and be ready to present sworn evidence at the hearing.

Talk to a Probate Attorney

If a will copy must be admitted because the original cannot be found and family members are blocking access to where it was kept, a probate case can turn contested quickly. Our firm has experienced attorneys who can help identify the required proof, prepare the verified petition, and manage service and hearing deadlines. 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.