What happens if we can’t locate the signed original—can a copy be used to open probate? – North Carolina

Short Answer

Yes—under North Carolina law, probate may still be opened without the signed original will, and in many cases a copy can be used. But a copy is not automatically accepted; the person offering it must prove the will was properly executed, prove what it said, and explain why the original cannot be found in a way that overcomes the usual presumption that the will was revoked. This is typically handled through an estate proceeding before the Clerk of Superior Court.

Understanding the Problem

In North Carolina probate, the key decision point is whether a will can be admitted when the signed original cannot be located. This issue usually comes up when a family member or named executor has a photocopy, a scanned PDF, a “conformed” copy, or even only secondhand knowledge of what the will said, but no one can find the original document after the death. The question matters because the Clerk of Superior Court must decide whether to treat the estate as testate (with a will) or intestate (no will found).

Apply the Law

North Carolina allows probate of a “lost or destroyed” will, which can include admitting a copy (or even proving the will’s contents without a copy) if the required proof is presented. The proceeding is handled in the Estates Division before the Clerk of Superior Court in the county where the decedent was domiciled at death. A missing original will often triggers a rebuttable presumption that the decedent destroyed it with the intent to revoke it, so the person offering the copy must present strong evidence to rebut that presumption and to establish the will’s validity and contents.

Key Requirements

Due execution: Proof that the original will was signed and witnessed in the way North Carolina requires for that type of will (often supported by subscribing-witness affidavits or other competent evidence if witnesses are unavailable).
Contents of the will: Proof of what the will said (a copy is strong evidence of contents, but North Carolina practice also allows contents to be proved by testimony when necessary).
Non-revocation and why the original is missing: Proof that the will was lost or destroyed and that the loss did not happen by the decedent (or at the decedent’s direction) with intent to revoke; this typically requires facts that account for the missing original and rebut the presumption of revocation.
Diligent search: Proof of a good-faith search and inquiry in the places the will would most likely be found (home files, safe deposit box, attorney records, clerk’s safekeeping depository, and other logical locations based on the decedent’s habits).
Proper notice/service in the estate proceeding: In a petition-based proceeding, interested persons may need to be named and served, and the court may need to appoint a guardian ad litem if an interested person cannot be located.

What the Statutes Say

N.C. Gen. Stat. § 31-39 (Probate necessary to pass title) – A will generally must be probated (or at least offered for probate within the statutory window) to be effective to pass title against certain third parties, with special timing rules when a will is lost and a proceeding is filed to establish it.
N.C. Gen. Stat. § 31-32 (Filing of caveat) – Sets the general deadline to challenge a will probated in common form (generally within three years, subject to disability rules), and explains when solemn-form probate can bar later caveats for parties properly served.
N.C. Gen. Stat. § 31-11 (Clerk safekeeping depository) – Requires each county clerk to maintain a depository where a living person may file a will for safekeeping, which can be an important place to check when an original cannot be found.

Analysis

Apply the Rule to the Facts: Here, the will cannot currently be located, and probate needs to begin in North Carolina. If a copy exists, that copy can help prove the will’s contents, but the key practical hurdle will be proving due execution and presenting facts showing a diligent search and a credible explanation for why the original is missing that rebuts the presumption of revocation. If no copy exists, a lost-will proceeding may still be possible, but it usually becomes more evidence-heavy because the contents must be proved through witness testimony or other competent proof.

Process & Timing

Who files: Usually the named executor, or another beneficiary or interested person if the executor does not proceed. Where: Estates Division of the Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: An estate proceeding (often a verified petition) asking the clerk to admit a copy (or otherwise prove a lost or destroyed will), with supporting affidavits and exhibits (such as the copy, witness affidavits, and a detailed description of the search). When: Often as soon as the death certificate is available and a meaningful search has been completed; if there is real property or urgency to establish authority, waiting can create avoidable complications.
Notice and service: The petition should identify the people who would inherit if there were no will (intestate heirs) and other interested persons, and the case may require formal service of process. If an interested person cannot be found, the clerk may require appointment of a guardian ad litem to protect that person’s interests.
Hearing and proof: The clerk reviews the evidence and may hold a hearing. If the proof meets the required standard, the clerk can admit the will to probate and then issue letters testamentary (or other authority documents depending on the situation). If the matter is contested, it may shift into a will contest (caveat) process.

Exceptions & Pitfalls

Presumption of revocation: When the original was last in the decedent’s possession and cannot be found at death, the law often presumes the decedent revoked it. The petition must include facts that rebut that presumption (for example, facts suggesting someone else lost or destroyed it, or that it was last kept with a third party).
“Copy” issues: A photocopy or scan helps prove contents, but it does not prove proper signing and witnessing by itself. The clerk typically expects subscribing-witness affidavits or other competent proof of execution if witnesses cannot be located.
Search documentation: Vague statements like “we looked everywhere” can be a problem. A persuasive submission usually describes where the search was done and why those locations made sense.
Service/notice mistakes: Failing to identify and properly serve interested persons can delay the case and increase the risk of later challenges.

Conclusion

In North Carolina, probate can move forward even when the signed original will cannot be located, and a copy may be admitted if the person offering it proves due execution, proves the will’s contents, shows a diligent search, and rebuts the presumption that the decedent revoked the will. The next step is to file a verified lost-will petition with the Clerk of Superior Court in the county where the decedent was domiciled, supported by affidavits and a detailed search description.

Talk to a Probate Attorney

If a signed original will cannot be found and probate needs to start, an attorney can help evaluate whether a copy can be admitted, what proof is needed, and how to move the case through the Clerk of Superior Court without avoidable delays. 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.