What kind of proof does the court need to accept a lost or destroyed will as valid? – North Carolina

Short Answer

In North Carolina, the Clerk of Superior Court can admit a lost or destroyed will (often by probating a copy) only if the person offering it proves the will’s validity and explains why the original is missing. The court generally looks for clear, strong, and convincing evidence that the will was properly signed, what it said, that it was lost or destroyed, that it was not intentionally revoked, and that a diligent search was done. If the original was last in the decedent’s possession and cannot be found, the court may presume the decedent revoked it unless that presumption is rebutted with evidence.

Understanding the Problem

In a North Carolina probate case, the key question is: can a named executor ask the Clerk of Superior Court to probate a copy of a will when the original signed will cannot be found after the decedent’s death? The decision usually turns on whether the copy can be tied to a properly executed original will and whether the missing original is consistent with an accidental loss (or destruction by someone else) rather than an intentional revocation by the decedent.

Apply the Law

North Carolina allows a “lost will” to be proved, but the burden is on the person offering the will for probate (often the named executor). The Clerk of Superior Court is the main decision-maker for admitting a will to probate, and the proof must be strong enough to satisfy the clerk that the will existed, was validly executed, and remains the decedent’s last will even though the original cannot be produced. A major issue in many lost-will cases is the rebuttable presumption that a will was revoked when it was last known to be in the decedent’s possession and cannot be found at death.

Key Requirements

Valid execution of the original will: Evidence must show the original will was signed and witnessed in the way North Carolina law requires for that type of will (for many wills, this means an attested written will with the required witnesses).
Proof of the will’s contents: The court must be satisfied about what the will said. A copy is often the best evidence, but testimony can also be used to establish contents when a copy is incomplete or unavailable.
Proof the will was lost or destroyed (not revoked): Evidence must show the original is missing because it was lost or destroyed and that this did not happen by the decedent (or at the decedent’s direction) with the intent to revoke it. If the will was last in the decedent’s possession, the presumption of revocation may apply unless rebutted.
Diligent search: The person offering the will must show a good-faith search was made in the places the original would most likely be found, and that reasonable sources of information were checked.

What the Statutes Say

N.C. Gen. Stat. § 98-4 (Copy of lost will may be probated) – Allows probate of a copy in certain “lost or destroyed records” situations and describes proof steps when a certified copy exists.
N.C. Gen. Stat. § 98-6 (Establishing contents of will where original and copy destroyed) – Provides a petition process to establish the contents of a will when no copy exists, with interested parties joined and fact issues potentially tried by a jury.

Analysis

Apply the Rule to the Facts: Here, the named executor is trying to probate a copy because the original signed will cannot be found. The clerk will focus on (1) whether the original was properly executed, (2) whether the copy accurately reflects the will’s contents, (3) whether the original is missing due to loss or destruction rather than intentional revocation, and (4) whether a diligent search was completed and can be described in detail. If the original was last known to be kept by the decedent and it is missing at death, the executor should be prepared to present evidence that explains why the will could not have been destroyed by the decedent (or at the decedent’s direction) with intent to revoke.

Process & Timing

Who files: Typically the named executor (or another interested person if needed). Where: The Clerk of Superior Court in the North Carolina county where the decedent was domiciled at death. What: A verified petition (and supporting affidavits or witness testimony) asking to admit a copy as a lost or destroyed will, plus service paperwork for interested parties. When: As soon as practical after death, especially if estate assets need administration and there is a risk of disputes.
Evidence submission: The clerk typically requires sworn evidence. Common proof includes affidavits from the attesting witnesses (if available), testimony from people familiar with the will’s signing and storage, and a detailed description of the search (where it was looked for, who searched, and what records were checked).
Notice and dispute handling: Interested persons who would inherit if there were no will are commonly brought into the case and served. If someone disputes the lost-will proof, the matter can become contested and may require additional hearings (and, in some situations, fact issues can be sent to Superior Court for a jury determination).

Exceptions & Pitfalls

Presumption of revocation: If the original was last seen in the decedent’s possession and cannot be found at death, the court may presume the decedent revoked it. Overcoming that usually requires specific facts showing the will was lost or destroyed without the decedent’s intent to revoke (for example, destruction in a disaster, loss during a move, or destruction by another person without the decedent’s consent).
Weak proof of execution: If the subscribing witnesses cannot be located, the case may still be provable, but the executor should be ready to explain why witnesses are unavailable and offer the best other competent evidence available (for example, testimony from someone who observed the signing or can identify signatures and the circumstances of execution).
Vague “we looked everywhere” searches: Clerks often expect a concrete, step-by-step search description. A search that does not cover obvious locations (home files, safe deposit box, attorney file, digital vaults, storage units, and trusted family contacts) can undermine the petition.
Copy quality and completeness: A partial or altered copy raises questions about contents. If the copy is incomplete, additional testimony may be needed to establish missing pages or key clauses.
Notice/service problems: Lost-will proceedings often require bringing in heirs who would take under intestacy if the will is not admitted. Failure to identify and properly serve interested persons can delay the case or create grounds to challenge the result.

For related North Carolina probate issues, see submit a copy of a newer will and contest a will.

Conclusion

North Carolina courts can accept a lost or destroyed will, but the person offering it must prove—by clear, strong, and convincing evidence—that the original was properly executed, what the will said, that the original is missing because it was lost or destroyed, that it was not intentionally revoked, and that a diligent search was completed. 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 witness affidavits (if available) and a detailed search description.

Talk to a Probate Attorney

If a will cannot be found and the estate needs the court to accept a copy as a lost or destroyed will, a probate case can turn on the quality of the evidence and the way notice is handled. Our firm has experienced attorneys who can help explain the proof the clerk will expect and the timelines to follow. Call us today at [CONTACT NUMBER].

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.