Short Answer

In North Carolina, you can ask the Clerk of Superior Court to admit a lost or destroyed will by proving five things with clear, convincing evidence: the testator’s death, proper execution of the original will, the will’s contents, that the loss was not a revocation by the testator, and that you conducted a diligent search. If the original was last in a third party’s custody (for example, a government office), the usual presumption of revocation may not apply. If the named executor does not act within 60 days, a devisee or other interested person may apply after 10 days’ notice.

Understanding the Problem

You want to know whether you can probate a copy of a will in North Carolina when the original cannot be found. Here, the caregiver-daughter sent the original will to a government office and it was never returned, so only a copy remains. The question is whether, and how, the Clerk of Superior Court can accept that copy so the estate can be administered.

Apply the Law

North Carolina allows the probate of a lost or destroyed will, even without the original. The proceeding is filed with the Clerk of Superior Court in the county where the decedent was domiciled. The propounder (usually the named executor or another interested person) must present strong evidence of five elements: death, due execution of the original, the will’s contents, that the loss was not the testator’s revocation, and a diligent search. If the will was last in the testator’s possession and now cannot be found, a presumption of revocation can arise; if it was last in a third party’s custody, that presumption generally does not apply. The named executor may apply at any time after death; if they do not within 60 days, a devisee or other interested person may apply after 10 days’ notice.

Key Requirements

• Death: Provide proof the testator has died (e.g., death certificate).
• Proper execution: Show the original was executed with North Carolina’s will formalities (or other law that makes it valid); witness affidavits or other competent proof may be used.
• Contents: Prove what the will said; a photocopy is strong evidence, but testimony can also establish contents.
• No revocation by testator: Show the original was not destroyed by, or at the direction of, the testator with intent to revoke; the presumption of revocation is weaker if the will was last with a third party.
• Diligent search: Document a thorough, good‑faith search in places the original would likely be found (home, safe deposit box, drafting lawyer, Clerk’s safekeeping, and the office to which it was mailed).

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2-4 (Clerk’s jurisdiction) – Clerk of Superior Court has original, exclusive probate jurisdiction.
• North Carolina Gen. Stat. § 28A-2A-2 (Who may apply; timing) – Executor may apply; others may apply after 60 days with 10 days’ notice.
• North Carolina Gen. Stat. § 28A-2A-4 (Compel production of a will) – Clerk can summon a custodian to produce a will or disclose its disposition.
• North Carolina Gen. Stat. § 31-32 (Caveat timing) – Caveat (will contest) generally must be filed within three years after probate.

Analysis

Apply the Rule to the Facts: Because the original was mailed to a government office and not returned, you can explain that the will was last in a third party’s custody, which helps counter any presumption that your mother revoked it. Your copy and any witness affidavits can prove contents and proper execution. Provide the death certificate and a detailed affidavit describing a diligent search (home, safe deposit box, drafting attorney, Clerk’s safekeeping, and the agency that received the original). Those proofs together support admission of the copy before the Clerk.

Process & Timing

1. Who files: The named executor; if they do not act within 60 days, a devisee or other interested person may apply after giving 10 days’ notice. Where: Clerk of Superior Court (Estates Division) in the North Carolina county of the decedent’s domicile. What: Verified petition to probate a copy of a lost will, AOC‑E‑201 (Application for Probate and Letters), attach the photocopy, death certificate, detailed “diligent search” affidavit, and witness affidavits (AOC‑E‑300/E‑301) if available. When: Any time after death; if the executor is inactive, apply after day 60 with 10 days’ notice.
2. Clerk review. Many lost‑will matters proceed in common form (ex parte). If questions exist, consider probate in solemn form (notice and hearing), which can produce a binding result if uncontested. If someone contests, the case transfers to Superior Court for a caveat proceeding. Timeframes vary by county; expect weeks to a few months.
3. Outcome: If admitted, the Clerk issues a Certificate of Probate and, if requested and qualified, Letters Testamentary/Administration. Use the certified documents to handle real property, vehicles, and accounts; record certified copies in any North Carolina county where real estate is located.

Exceptions & Pitfalls

• If the original was last in the testator’s possession and is missing, a presumption of revocation can arise; be ready with facts showing loss by someone else or circumstances inconsistent with revocation.
• Document a thorough search, including asking the Clerk to manually check for any will deposited for safekeeping and contacting the office that received the mailed original.
• No preprinted AOC form exists to probate a lost will; a detailed verified petition and affidavits are critical.
• Consider solemn‑form probate if you anticipate a challenge; if a caveat is filed, the matter moves to Superior Court.
• If real property lies in another North Carolina county, record certified copies there to protect title.

Talk to a Probate Attorney

If you’re dealing with a missing original will and need to admit a copy, 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.