What steps and affidavits are required to probate a lost will copy in North Carolina?
Detailed Answer
Under North Carolina law, you may probate a copy of a will when the original cannot be found. Chapter 28A of the North Carolina General Statutes governs probate. Specifically, N.C.G.S. § 28A-2-5 and § 28A-2-6 allow admission of a lost will copy if you satisfy certain requirements.
1. Confirm the Original Is Lost
Before filing, conduct a thorough search for the original will. Check safe-deposit boxes, home files, attorney records and personal papers. Send written requests to anyone who might have custody. Document your search efforts carefully.
2. Prepare and File the Probate Petition
File a petition for probate with the clerk of superior court in the county where the decedent lived. In the petition, state that the original will is lost, describe your search, and attach a legible copy of the will.
3. Affidavit of Lost Will
North Carolina law requires an affidavit sworn under oath explaining why the original cannot be produced. This affidavit should:
- Identify the petitioner and relationship to the decedent.
- Describe where and when the last known will was kept.
- Detail your diligent search efforts and reasons the original is unavailable.
4. Affidavit of Due Execution
You must prove that the will copy reflects a will that was validly executed. Have at least one attesting witness sign an affidavit stating:
- They witnessed the decedent sign the original will.
- The decedent appeared to understand and intended to execute the document as their last will.
- Those formalities complied with N.C.G.S. § 28A-2-1 (requirements for a valid will).
5. Notice to Heirs and Creditors
Once you file the petition and affidavits, the clerk sets a hearing date. You must mail notice to all heirs, devisees and known creditors. See N.C.G.S. § 28A-12-1 for timing and content requirements.
6. Attend the Probate Hearing
At the hearing, the clerk reviews your petition, the will copy, and affidavits. If the clerk finds them satisfactory under N.C.G.S. § 28A-2-6, they admit the copy to probate. Once admitted, the estate proceeds as with any other probate matter.
Key Steps at a Glance
- Confirm loss: Document exhaustive search for the original will.
- File petition: Include copy of the will and state facts of loss.
- Affidavit of lost will: Sworn statement explaining why original is unavailable.
- Affidavit of due execution: Witness statement that the will was validly signed.
- Notice: Send required notices to heirs and creditors under N.C.G.S. § 28A-12-1.
- Hearing: Present petition and affidavits in court for admission of the copy.
Probating a lost will copy requires careful attention to statutory formalities and strict notice rules. At Pierce Law Group, our attorneys guide families through every step of North Carolina probate administration. Contact us today for personalized assistance. Reach out by email to intake@piercelaw.com or call (919) 341-7055 to schedule a consultation.
