What happens if we only have copies of the original will and not the signed original? NC

Understanding the Problem

The key question is whether a photocopy or scanned copy can be treated as the decedent’s will when the signed original cannot be located. This issue may arise when a family member believes a valid will exists but cannot find the original after the death, or when someone produces a different purportedly later will. The outcome determines whether the copy controls the estate or the estate proceeds as though there were no will.

Apply the Law

North Carolina generally requires the person offering the copy, known as the propounder, to establish that the missing will was validly executed, prove what it said, and satisfactorily account for the original’s absence. The filing is ordinarily made with the Estates Division of the Clerk of Superior Court in the county where the decedent was domiciled. Different rules may apply if a licensed North Carolina attorney stored the attested written will as a qualifying electronic record.

Key Requirements

Proper execution: Evidence that the original was signed and witnessed as North Carolina law requires for that type of will. This may be shown through witness testimony, affidavits, or other competent evidence when witnesses are unavailable.
Contents of the will: Evidence establishing what the missing original said. A photocopy or scan is useful evidence, although other evidence may sometimes establish the contents.
Loss rather than revocation: Evidence that the original was lost or destroyed without the decedent intending to revoke it.
Diligent search: Evidence of a good-faith search in the places where the original would most likely have been found.

What the Statutes Say

N.C. Gen. Stat. § 31-11 allows a testator to deposit an original paper will with the clerk of superior court for safekeeping during the testator’s life.
N.C. Gen. Stat. § 31-39 makes probate necessary for a will to pass title and includes timing protections when a will is lost, stolen, fraudulently suppressed, or destroyed and a timely proceeding is brought to obtain or establish it.
N.C. Gen. Stat. § 31-72(b) provides that a qualifying attested written will stored as an electronic record by a licensed North Carolina attorney is not deemed revoked or presumed revoked merely because the original written will is lost or destroyed.
N.C. Gen. Stat. § 31-73 permits the attorney to create a certified paper copy of that electronic record, which may be probated under N.C. Gen. Stat. § 28A-2A-8(a1).

North Carolina does not have a single general statute governing probate of an ordinary lost or destroyed unprobated will. N.C. Gen. Stat. § 98-4 and N.C. Gen. Stat. § 98-5 address the narrower situation in which original wills and will books held by the clerk’s office were lost or destroyed and a certified copy was preserved. They do not govern the usual situation in which a family simply cannot locate the decedent’s original will.

Analysis

The facts describe a missing earlier will, a relative occupying the decedent’s home, and a purported later will that appears forged. The person relying on the earlier copy typically must prove its proper execution and contents, document the search for the original, and explain why the original is missing. If the original was last known to be in the decedent’s possession, evidence that it was lost, destroyed, or withheld by someone else may be central to rebutting the presumption of revocation. That presumption does not apply in the same way if the will qualifies under the attorney-stored electronic-record statutes.

Process & Timing

File in the proper county: The executor named in the copy may apply to the Clerk of Superior Court in the county where the decedent was domiciled. If no executor applies within 60 days after death, a devisee or another interested person may apply after giving the executor 10 days’ notice. The clerk may shorten the initial 60-day period for good cause under N.C. Gen. Stat. § 28A-2A-2.
Submit proof concerning the copy: A traditional lost-will filing generally includes a verified petition or sworn materials addressing execution, contents, the circumstances of the loss, and the diligent search. The copy should be attached.
Address any competing will: If someone offers a purportedly later will, an interested person may challenge it through the appropriate caveat procedure. For more on that process, see how a caveat proceeding works.

Clock to watch: When a questionable will is being offered and control of property is changing quickly, delay can make it harder to locate witnesses, documents, and reliable proof concerning execution and the search for the original.

Exceptions & Pitfalls

The presumption of revocation: If the original was last in the decedent’s possession and cannot be found at death, the propounder may need concrete evidence showing that its absence resulted from something other than intentional revocation. Examples include evidence that others had access to the storage location or that theft, fire, or flooding caused the loss. N.C. Gen. Stat. § 31-72(b) provides a different rule for a qualifying attorney-stored electronic record.
Failing to document the search: A vague statement that the will cannot be found may be insufficient. Record where people searched, who conducted each search, and what files, containers, offices, and storage locations were checked.
Execution-proof problems: If the will was not self-proving and the witnesses cannot be located, other competent evidence may be necessary. See how to prove a will is valid when witnesses cannot be found.
Confusing a copy with an unsigned draft: A photocopy showing signatures, dates, and witness lines provides different evidence from an unsigned draft or attorney notes.
Overlooking safekeeping arrangements: Check whether the decedent deposited the original with the clerk under N.C. Gen. Stat. § 31-11 or directed a licensed attorney to store the will as a qualifying electronic record.
Occupancy and control of the home: When someone occupying the decedent’s home controls access to records or refuses to leave, probate filings and, when appropriate, separate proceedings may be necessary to establish authority and protect estate property.

Conclusion

In North Carolina, a missing signed original does not automatically prevent probate, but an ordinary copy requires proof of execution, contents, loss without intent to revoke, and a diligent search. The key threshold is rebutting any presumption of revocation when the original was last in the decedent’s possession; qualifying attorney-stored electronic records follow a different route. Promptly contact the appropriate clerk and gather sworn proof. For practical preparation steps, read Verifying an Original Will in North Carolina Probate.

Talk to a Probate Attorney

If you are dealing with a missing original will or a dispute over which document controls an estate, contact our firm for a free case evaluation to discuss your options, evidence, and next steps.