Short Answer

In North Carolina, the person holding a decedent’s original will must deliver it to the Clerk of Superior Court for probate. If the custodian or named executor refuses, you can file a sworn application with the clerk to compel production; the clerk can order the person to produce the will or disclose its location and can enforce the order by civil contempt. If the named executor does not apply to probate the will within 60 days of death, an interested person may start probate after giving 10 days’ notice to the named executor. Once probated, the will becomes a public record.

Understanding the Problem

In North Carolina probate, can you get a copy of a decedent’s will when the named executor won’t share it and hasn’t filed it with the Clerk of Superior Court? Here, you’re the grandchild, and the step‑relative serving as purported executor is withholding the will and no estate has been opened. The question is whether you can force that person to file or produce the will so you can see it.

Apply the Law

North Carolina law requires a will’s custodian to deliver the original to the Clerk of Superior Court for probate after death. If someone in North Carolina has the will and won’t produce it, an interested person may apply by affidavit to the clerk to compel production. The clerk issues a summons ordering the custodian to bring in the will or swear to its whereabouts by a date certain, with service typically made under Rule 4 procedures. Failure to comply can be enforced by civil contempt. Separately, if the named executor does not apply for probate within 60 days of death, any devisee or other interested person may apply for probate after giving the named executor at least 10 days’ notice. When a will is admitted to probate, it remains with the clerk and is a public record that can be inspected and copied.

Key Requirements

• Standing and affidavit: File a sworn application stating facts showing a will exists and that someone in North Carolina has it.
• Clerk’s summons/order: The clerk issues a summons setting a deadline to produce the will or disclose its location under oath; service is typically via Rule 4.
• Enforcement: Willful noncompliance can be punished by civil contempt until the person complies or shows inability to comply.
• Initiating probate after 60 days: If the executor doesn’t act within 60 days, an interested person may apply for probate upon 10 days’ notice to the named executor.
• Public access after probate: Once probated, the will stays with the clerk as a public record available for inspection and copies.

What the Statutes Say

• N.C. Gen. Stat. § 28A‑2A‑4 (Compel production of a will) – Clerk may summon the custodian to produce the will or disclose its location; enforceable by contempt.
• N.C. Gen. Stat. § 28A‑2A‑2 (Interested person may apply) – After 60 days, a devisee or other interested person may apply to probate upon 10 days’ notice to the named executor.
• N.C. Gen. Stat. § 28A‑2A‑13 (Probated wills kept by clerk) – Original probated wills remain in the clerk’s office as public records.
• N.C. Gen. Stat. § 14‑77 (Criminal concealment or destruction of a will) – It is a Class 1 misdemeanor to destroy or conceal a will for a fraudulent purpose.

Analysis

Apply the Rule to the Facts: You are an interested person (the decedent’s grandchild) and allege a will exists but hasn’t been filed. You can submit a sworn application to the Clerk of Superior Court to compel the step‑relative to produce the original will or disclose where it is. If the named executor still does nothing, after 60 days from death you may also apply to probate the will upon 10 days’ notice to the named executor, which will make the will public once admitted.

Process & Timing

1. Who files: You (as an interested person). Where: Clerk of Superior Court in the North Carolina county where the decedent lived at death. What: A sworn application by affidavit to compel production of the will (no standard AOC form), and, if you are ready to proceed with probate, file AOC‑E‑201 (Application for Probate and Letters) or AOC‑E‑199 (Application for Probate Without Qualification). When: Any time after death; to initiate probate yourself, wait 60 days from death and give the named executor 10 days’ written notice.
2. The clerk issues a summons/order setting a date to produce the will or disclose its location under oath. Have it served consistent with Rule 4 (often by sheriff or certified mail). If the custodian ignores the order, the clerk can issue a show‑cause order and hold a civil contempt hearing. This step can take a few weeks; counties vary.
3. If the will is produced, the clerk files it. If admitted to probate, the will becomes a public record, and the clerk mails notices to known beneficiaries (AOC‑E‑405). If no personal representative is needed, the will can be recorded without full administration.

Exceptions & Pitfalls

• Inability to comply: If the custodian no longer has the will or cannot produce it, civil contempt is not appropriate; the person must still disclose under oath where it is or how it was disposed.
• Service defects: Improper service of the clerk’s summons/order can delay enforcement. Use a Rule 4 method and keep proof of service.
• Before probate, not public: A will is not public until it is admitted to probate. Compelling production is often necessary to access it.
• Non‑probate assets: Life insurance and many beneficiary‑designated or joint accounts pass outside probate; the will may not control them. A compel‑will proceeding does not force disclosure of insurance details.
• Wrong forum or county: File with the Clerk of Superior Court in the decedent’s county of residence at death to avoid delays.

Talk to a Probate Attorney

If you’re dealing with a withheld will and an uncooperative executor, our firm has experienced attorneys who can help you understand your options and timelines. Call us today.

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.