How to Compel Production of an Unfiled Will in North Carolina

Detailed Answer

When someone dies leaving a will that never reached the clerk’s office, interested parties may need to compel its production before beginning probate. Under North Carolina law, you have two main tools: (1) the probate statutes governing wills found after death and (2) civil subpoenas for documentary evidence.

1. Probate Statute for Wills Found After Death

North Carolina General Statutes § 31-6 allows the clerk of superior court to accept and probate a will discovered after the testator’s death. To invoke this statute:

• Identify the will’s custodian (for example, a family member or attorney).
• Obtain the original will or a certified copy. If you cannot obtain it voluntarily, proceed with a subpoena (see below).
• File the will with the clerk’s office and submit a petition for probate under N.C.G.S. § 31-6.

2. Using a Subpoena Duces Tecum

If the custodian refuses to hand over the original document, you can serve a subpoena duces tecum under the North Carolina Rules of Civil Procedure. Rule 45 lets you command a non-party to produce documents in your possession:

• File an affidavit or petition establishing your right to see the will (for example, as a person entitled to letters of administration under N.C.G.S. § 28A-3-1).
• Request the clerk of superior court to issue the subpoena under Rule 45, N.C. R. Civ. P..
• Serve the subpoena on the custodian along with a schedule specifying the will as the document to produce.
• If the custodian disobeys, move the court for an order to compel production and, if necessary, hold the custodian in contempt.

3. Appointing an Administrator Before Subpoena

In many cases, you begin by obtaining letters of administration. The clerk issues those letters once someone qualifies under N.C.G.S. § 28A-3-1. As administrator, you hold formal authority to use subpoenas and to present the will for probate under § 31-6.

Key Takeaways

• Use N.C.G.S. § 31-6 to probate a will found after death.
• Serve a subpoena duces tecum under Rule 45, N.C. R. Civ. P., to force the custodian to produce the will.
• Obtain letters of administration under N.C.G.S. § 28A-3-1 to gain formal standing.
• File a petition with the clerk of superior court to probate the will once you have it.
• If the custodian refuses, petition for a court order to compel production and possible contempt sanctions.

Next Steps and Call to Action

Compelling an unfiled will calls for strategic steps and strict compliance with North Carolina statutes and court rules. At Pierce Law Group, our attorneys guide families through every stage of probate administration. Let us help you obtain and probate that will smoothly. Contact Pierce Law Group by email at intake@piercelaw.com or call us directly at (919) 341-7055.