Short Answer

In North Carolina, you may file a sworn application with the Clerk of Superior Court to compel anyone in North Carolina who has the original will to produce it. The clerk issues a summons ordering that person to deliver the will for probate or swear to its whereabouts; failure to comply can lead to civil contempt. Separately, if the named executor has not applied to probate the will within 60 days of death, a devisee or other interested person may apply after giving 10 days’ notice to the named executor.

Understanding the Problem

You want to know how, under North Carolina probate law, you can make someone deliver a deceased person’s will to the court. Here, you are the grandchild, the named executor is a step-relative who won’t share the will, and no probate case is open with the Clerk of Superior Court.

Apply the Law

North Carolina law lets an interested person start a summary proceeding before the Clerk of Superior Court to force the person holding a decedent’s will in North Carolina to bring it in. You do this by filing a sworn application (affidavit) stating that a will exists and identifying who in North Carolina has it. The clerk then issues a summons setting a date by which the custodian must either produce the will for probate or swear to where it is or how it was disposed. If the custodian disobeys, the clerk can initiate civil contempt. Separately, if the named executor does not apply within 60 days of death, a devisee or other interested person may apply to probate the will after giving 10 days’ written notice to the named executor; the clerk can shorten the 60-day period for good cause. Venue is the Clerk of Superior Court in the county where the decedent lived.

Key Requirements

• Affidavit to compel: File a sworn application stating a last will exists and a specific person in North Carolina has it.
• Clerk’s summons and order: The clerk issues a summons directing the custodian to produce the will or swear to its whereabouts by a date certain.
• Service: Formal service is required (typically Rule 4 methods such as sheriff or certified mail) so the order can be enforced.
• Enforcement by contempt: If the custodian does not comply, the clerk may issue an order to show cause and hold the person in civil contempt until they comply.
• Alternative if executor is inactive: After 60 days from death, a devisee or other interested person may apply to probate the will with 10 days’ notice to the named executor; the clerk may shorten the 60 days for good cause.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-4 (Production of will) – Clerk may summon the custodian to produce the will or swear to its location; enforceable by contempt.
• North Carolina Gen. Stat. § 28A-2A-2 (Interested person may apply) – After 60 days, a devisee or other interested person may apply to probate upon 10 days’ notice to the named executor.
• North Carolina Gen. Stat. § 5A-23 (Civil contempt procedure) – Show-cause process for civil contempt of a court order.
• North Carolina Gen. Stat. § 14-77 (Concealing or destroying a will) – Criminal offense to conceal, destroy, or steal a will.

Analysis

Apply the Rule to the Facts: You can file an affidavit with the Clerk of Superior Court in the decedent’s county stating that a will exists and the step‑relative is holding it in North Carolina. The clerk should issue a summons ordering that person to produce the will or swear to its whereabouts by a set date, enforceable by civil contempt. If 60 days have passed since death and the named executor still hasn’t applied, you, as an interested person, may apply to probate the will after giving the executor 10 days’ notice.

Process & Timing

1. Who files: Any interested person (including a devisee or heir). Where: Clerk of Superior Court in the North Carolina county where the decedent lived. What: A sworn application (affidavit) to compel production of the will; there is no preprinted AOC form. If you instead apply to probate, use AOC‑E‑201, Application for Probate and Letters. When: You may compel production immediately; to apply yourself to probate, wait 60 days from death or ask the clerk to shorten for good cause, and give the named executor 10 days’ written notice.
2. After filing to compel, the clerk issues a summons ordering the custodian to produce the will or swear to its whereabouts by a date certain; arrange formal service. If the custodian complies, the will is brought in and the clerk proceeds with probate.
3. If the custodian does not comply, the clerk may issue an order to show cause and hold the custodian in civil contempt until they comply. Once the will is on file, the clerk can move forward with probate and, if appropriate, qualify a personal representative.

Exceptions & Pitfalls

• Custodian outside North Carolina: The clerk’s power to compel production targets someone in North Carolina. If the custodian is out of state, you may need different relief in that state or pursue probate of a copy if the original can’t be obtained.
• Service defects: Improper service can stall enforcement. Use formal Rule 4 methods (sheriff or certified mail) so a contempt order will stand.
• Will already deposited for safekeeping: Ask the clerk to check the will depository; if it is there, the clerk can move it into probate without compelling a third party.
• Lost/destroyed will: If the original cannot be produced, probate of a lost will is possible but requires strong proof of due execution, contents, and that it was not revoked.
• Non‑probate assets: Life insurance payable to a named beneficiary and some “in trust for” or joint accounts pass outside probate; compelling the will may not reveal or control those benefits.

Talk to a Probate Attorney

If you’re dealing with a withheld will and need the court to compel production, our firm has experienced attorneys who can help you understand your options and timelines. 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.