Probate Q&A Series

How do I file a petition to probate a lost will in North Carolina under N.C. Gen. Stat. § 28A-6-2?

Detailed Answer

When a will cannot be located after a testator’s death, North Carolina law provides a clear pathway to probate that lost document. Under N.C. Gen. Stat. § 28A-6-2, the court may admit a lost will if you prove its contents and validity by clear and convincing evidence.

1. Who May File

The personal representative named in the will generally petitions the clerk of superior court. If no representative exists, any heir or devisee with an interest in the estate may file.

2. Preparing the Petition

  • Describe the circumstances of the loss. Explain when and how the will went missing.
  • Attach a copy of the will, if available, or a typed draft showing each provision.
  • Identify all heirs, devisees, and interested parties.

3. Filing and Notice Requirements

File your petition in the clerk’s office of the county where the decedent resided. North Carolina law requires you to notify:

  • All heirs and devisees.
  • Known creditors of the estate.
  • Any person named as executor or trustee in the will.

Service must follow the timelines set out in N.C. Gen. Stat. § 28A-6-2 and the North Carolina Rules of Civil Procedure.

4. Proving the Lost Will

At the hearing, you must offer clear and convincing proof that the will existed and reflected the testator’s intent. Key evidence includes:

  • Testimony from attesting witnesses who recall signing the will.
  • Handwriting or signature analysis by someone familiar with the testator’s writing.
  • A true and accurate copy of the will, if one exists.

If the court finds the evidence sufficient, it will admit the lost will to probate as if the original had been presented.

Key Steps to Probate a Lost Will

  • Confirm no original will can be found after a diligent search.
  • Draft and file a petition under N.C. Gen. Stat. § 28A-6-2 in the proper county.
  • Provide notice to heirs, devisees, creditors, and named fiduciaries.
  • Gather witness testimony and any copies or drafts of the will.
  • Attend the hearing and present clear and convincing evidence.
  • Receive the court’s order admitting the lost will and proceed with estate administration.

Call to Action

Probating a lost will involves strict procedural rules and important deadlines. Pierce Law Group’s attorneys guide families through each step under North Carolina law. If you need help drafting a petition or presenting proof, contact us today. Email us at intake@piercelaw.com or call us at (919) 341-7055 to schedule a consultation.