Locating the Original Will

In North Carolina, a valid original will controls how a person’s estate distributes after death. To find the document, you should:

• Search personal records. Look through home file cabinets, desk drawers and any personal safe deposit boxes.
• Contact the decedent’s attorney or bank. If an estate planning attorney prepared the will, they may hold the original. Banks also may hold safe deposit boxes, which require a court order to open.
• Review digital files. Check for scanned copies, email exchanges or digital storage where the will might appear.
• Ask family or friends. The decedent may have told a trusted person where to find the will.

Compelling Production of an Original Will

If you know who holds the original will but they refuse to turn it over, you can ask the clerk of superior court to intervene. Under N.C. Gen. Stat. § 31-5.1, the clerk may order anyone in possession of the will to deposit it with the court within ten days. To proceed:

1. File a petition for probate naming the person in possession as a respondent.
2. Describe your search efforts and identify the custodian by name.
3. Request that the clerk issue an order directing delivery of the original will at a set date and time.
4. Serve the order on the respondent either personally or by certified mail.

If the respondent fails to comply, the clerk can hold them in contempt and the court may impose sanctions.

Probating a Lost or Destroyed Will

When an original will cannot be located after a diligent search, North Carolina law allows you to prove and admit a lost will. Under N.C. Gen. Stat. § 31-3, you must demonstrate:

• The will was duly executed under North Carolina law.
• You conducted a thorough search that failed to produce the original.
• The contents of the lost will through a copy and credible witness testimony.

Key steps include:

1. Prepare a petition for probate of a lost will and attach all known copies or drafts.
2. Name at least two witnesses who can testify to the execution and terms of the will.
3. File the petition in the decedent’s home county.
4. Serve notice on heirs, devisees and the proposed executor.
5. Present clear and convincing evidence at the probate hearing.

If the clerk is satisfied, the court will admit the copy to probate and appoint an executor to administer the estate.

Checklist: Key Steps for Locating or Probating a Will in North Carolina

• Conduct a diligent search of personal files, safe deposit boxes and digital records.
• Contact any attorney or bank that may hold the original will.
• File a petition under N.C. Gen. Stat. § 31-5.1 to compel production.
• Prepare a petition under N.C. Gen. Stat. § 31-3 to probate a lost will.
• Secure at least two credible witnesses to attest to the will’s execution and contents.
• Serve all interested parties and schedule a probate hearing.
• Present evidence that the will was properly executed and lost despite a diligent search.

Contact Pierce Law Group

Locating and probating an original or lost will involves strict rules and deadlines. Pierce Law Group’s attorneys guide you through the process and protect your rights. To discuss your situation, email intake@piercelaw.com or call (919) 341-7055.