What Happens if a Will Is Lost or Destroyed in North Carolina?

If a will goes missing or is destroyed in North Carolina, the court may still accept it—if you can prove key facts. North Carolina law allows “lost or destroyed” wills to be probated when the proponent shows how the will was executed, what it said, and that the person who died did not revoke it. If you cannot prove those points, the estate is treated as if there were no will and passes under North Carolina’s intestacy laws.

Detailed Answer

Quick Answer Under North Carolina Law

• North Carolina permits probate of a lost or destroyed will. See G.S. 28A-2A-13.
• You must prove: (1) proper execution, (2) the will’s contents, and (3) that it was not revoked.
• If the original was last in the decedent’s possession and cannot be found, courts may presume it was revoked. You can overcome that with strong, credible evidence.
• If you cannot establish the will, North Carolina’s intestacy statutes control. See Chapter 29.

When Is a Missing Will Considered Revoked?

A will is revoked if the testator (the person who made the will) intentionally destroys it or directs someone to destroy it with the intent to revoke. See G.S. 31-5.1. If the original will was last known to be in the testator’s possession and can’t be found after death, courts often presume the testator revoked it. That presumption can be rebutted by credible evidence showing, for example, accidental loss (fire, flood), theft, or that the testator consistently affirmed the will remained in effect.

How to Probate a Lost or Destroyed Will

Under G.S. 28A-2A-13, the person seeking probate must prove three things:

1. Execution: The will met North Carolina’s execution rules when signed—either an attested will signed by the testator and two witnesses (G.S. 31-3.3), a holographic will (handwritten, signed, and stored/kept as required by statute) (G.S. 31-3.4), or a limited nuncupative (oral) will for last-illness personal property only (G.S. 31-3.5).
2. Contents: What the will said—shown by a copy, draft, attorney file, or credible witness testimony.
3. No Revocation: The will was not revoked before death (for example, it was lost accidentally or destroyed by someone else without the testator’s direction).

If the will is “self-proved” (signed with a proper notarized affidavit), that can streamline proving execution. See G.S. 31-11.6.

What Evidence Can Be Used?

• A photocopy, scan, or draft of the will.
• Testimony or affidavits from the attesting witnesses or the drafting attorney.
• Law firm file materials: cover letters, execution checklists, proof of a signing ceremony.
• Statements or documents showing the testator continued to treat the will as valid (e.g., references to the will near death, directions to locate it).
• Evidence explaining loss or destruction (e.g., home damage records, insurance claims, or credible witness accounts).

Where and How Do You File?

You file in the Probate Division of the Clerk of Superior Court in the decedent’s county of domicile. Expect to submit the petition, any copy of the will, affidavits or witness information, and supporting documents showing execution, contents, and lack of revocation. Because a lost will is more likely to be contested, many families file for probate in solemn form to obtain a binding judgment after formal notice to interested parties. See G.S. 31-18.1.

What If You Cannot Prove the Lost Will?

If you cannot establish the will under G.S. 28A-2A-13, the estate will be treated as intestate and distributed under Chapter 29 (North Carolina’s intestacy laws). That means assets pass to the surviving spouse and/or next of kin according to statute—not according to the missing will.

Real-World Example

Assume Alex signed a properly witnessed will at a law office. Years later, a house fire destroyed Alex’s papers. After Alex’s death, the family cannot find the original but locates a signed copy in the attorney’s file and obtains affidavits from the witnesses and lawyer about the signing ceremony. The family also provides insurance records proving the fire. The court can admit the will as a lost will because the family proved execution, contents, and that the will was not revoked.

Helpful Hints

• Act fast: Gather copies, witness names, and the drafting attorney’s information early.
• Search thoroughly: Check safes, file cabinets, digital scans, emails, and the drafting attorney’s file.
• Get affidavits: Secure sworn statements from witnesses and the drafting attorney to prove execution and contents.
• Explain the loss: Collect documentation of events like fire, flood, or a move that likely caused the loss.
• Consider solemn form probate: It provides stronger finality and reduces the risk of later challenges (G.S. 31-18.1).
• Preserve evidence: Do not mark up or alter copies; keep originals and copies safe and organized.
• Know the revocation rule: Intentional destruction by the testator revokes the will (G.S. 31-5.1).

Lost or destroyed wills are winnable—but the outcome depends on the quality of your proof. Our North Carolina probate team handles these matters regularly and can guide you through gathering evidence, preparing affidavits, and choosing the best probate path. For prompt help, call us at (919) 341-7055.