Short Answer

In North Carolina, you can file a sworn application with the Clerk of Superior Court asking the court to order the person holding the will to produce it. The clerk issues a summons requiring that person to bring in the will or swear to its whereabouts; failure to comply can be enforced by civil contempt. If the named executor has not offered the will for probate within 60 days of death, any devisee or other interested person may apply to probate the will after giving 10 days’ notice to the named executor. Some assets and spousal allowances occur outside probate, but that does not remove the duty to produce the will.

Understanding the Problem

You want to know whether, in North Carolina, you can make the surviving spouse file your grandmother’s will with the court so you can see it and ensure proper probate. Here, you are a named beneficiary and the surviving spouse has already claimed a year’s allowance and taken a vehicle. The decision point is: can you compel the will’s production and move probate forward with the Clerk of Superior Court?

Apply the Law

North Carolina law allows any interested person to ask the Clerk of Superior Court to compel production of a decedent’s will. You do this by filing an affidavit showing a will exists and is in someone’s possession in North Carolina. The clerk then orders that person to produce the will or swear to its location by a set date and can use civil contempt to enforce the order. Separately, if the named executor does not offer the will for probate 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. Venue is the county where the decedent was domiciled at death. Once probated, the will becomes part of the public record and beneficiaries receive notice from the clerk. While a spouse can claim a year’s allowance and some assets pass outside probate (for example, property titled as tenants by the entirety or accounts with named beneficiaries), those facts do not eliminate the duty to produce and probate the will when there are probate assets to administer.

Key Requirements

• Affidavit to compel: File a sworn application with facts showing a will exists and is held by someone in North Carolina.
• Clerk’s summons/order: The clerk issues a summons directing the person to produce the will or state under oath where it is by a date certain.
• Enforcement: If the person ignores the order, the clerk may initiate civil contempt proceedings; criminal penalties can also apply for fraudulent concealment or destruction.
• Alternate path after 60 days: If the named executor does not act within 60 days of death, a devisee or interested person may apply to probate after giving 10 days’ notice to the named executor.
• Proper venue: File in the Clerk of Superior Court in the county of the decedent’s domicile at death.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-4 (Compelling production of will) – Clerk may, on affidavit, summon the custodian to produce the will or swear to its disposition; enforceable by contempt.
• North Carolina Gen. Stat. § 28A-2A-2 (Executor fails to apply) – If the executor does not apply within 60 days, a devisee or interested person may apply after 10 days’ notice to the executor.
• North Carolina Gen. Stat. § 28A-3-1 (Venue) – Venue for probate and estate matters is the county of the decedent’s domicile at death.
• North Carolina Gen. Stat. § 14-77 (Destroying, stealing, concealing wills) – Makes fraudulent concealment or destruction of a will a Class 1 misdemeanor.

Analysis

Apply the Rule to the Facts: You and your parent are named beneficiaries and have not been allowed to see the will; that makes you “interested persons” who can file an affidavit asking the Clerk of Superior Court to order the spouse to produce it. Because the spouse has already pursued a year’s allowance and some assets passed outside probate (home by tenancy by the entirety; certain accounts by beneficiary designation), probate is still needed for any remaining probate assets (like undisclosed CDs). If the named executor has not probated the will within 60 days of death, you can give 10 days’ notice and apply to probate the will yourselves.

Process & Timing

1. Who files: An interested person (such as a named beneficiary). Where: Clerk of Superior Court in the decedent’s county of domicile in North Carolina. What: A sworn application (affidavit) to compel production of the will; include known facts about the will and custodian, and proof of death if available. If the will is produced, file AOC-E-201 (Application for Probate and Letters) to offer it for probate; the clerk may issue AOC-E-304 (Certificate of Probate). When: File as soon as possible; if the named executor has not acted within 60 days of death, you may apply to probate after giving 10 days’ notice to the executor.
2. The clerk issues a summons requiring the spouse (or other custodian) to produce the will or swear to its location by a set date. Service typically follows Rule 4 methods (sheriff, certified mail, or other authorized service). If the will is produced, the clerk proceeds with probate (common form is typical); the clerk mails notices to known beneficiaries after admission to probate.
3. If the custodian does not comply, the clerk may issue an order to show cause and proceed with civil contempt. In parallel, you may apply to probate the will (after the 60-day/10-day notice sequence) and, if necessary, seek related estate relief (for example, appointment of a personal representative and discovery of estate assets).

Exceptions & Pitfalls

• No “formal reading” is required in North Carolina; beneficiaries are mailed notice after probate, and the will becomes a public record.
• Service matters: ensure proper Rule 4 service of the clerk’s summons and any estate proceeding summons; defective service can delay enforcement.
• Contempt limits: if the custodian swears they no longer possess the will and identify where it went, civil contempt may not be appropriate; consider moving to probate a copy or a lost will if supported by evidence.
• Spousal allowances and nonprobate transfers (tenancy by the entirety, POD/TOD accounts, IRA beneficiaries) do not eliminate the obligation to produce the will or the need to probate for remaining probate assets and creditor procedures.
• Venue: file in the county of the decedent’s domicile. Venue objections can be waived if not raised timely.

Talk to a Probate Attorney

If you’re dealing with a withheld will or stalled probate in North Carolina, 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.