Short Answer

In North Carolina, you file an application by affidavit asking the Clerk of Superior Court to order the person holding the will to produce it. The clerk issues a summons directing that person to bring in the original or, under oath, explain where it is or how it was disposed of. If the person disobeys, the clerk can use civil contempt to compel compliance. If the original is truly unavailable, a copy may be considered through a “lost or destroyed will” process with additional proof.

Understanding the Problem

In North Carolina probate, can you make someone who earlier said they had the will bring the original to court? You’re asking the Clerk of Superior Court to order that person to produce the instrument so the estate can proceed under the correct document and not as an intestate estate.

Apply the Law

North Carolina law lets an interested person apply to the Clerk of Superior Court to compel production of a decedent’s will. The clerk can issue a summons ordering the person believed to have the will to produce it for probate or, under oath, disclose where it is or what happened to it. The order is enforceable by civil contempt. If the original cannot be produced, the court may consider admitting a copy as a lost or destroyed will, but only with strong supporting evidence. The clerk is the forum for these issues, and service of the summons must comply with formal service rules.

Key Requirements

• Application by affidavit: File a sworn statement showing a will exists and identifying who likely has it.
• Summons and order: The clerk issues a summons directing the person to produce the original or state under oath where it is or how it was disposed of.
• Proper service: Serve the summons and affidavit using formal service methods so the order is enforceable.
• Enforcement by contempt: If the person disobeys, the clerk may initiate civil contempt (including a show-cause order and potential jail until compliance).
• If no original exists: To use a copy, you must prove due execution, the contents, a diligent search, and that loss or destruction was not by the testator with intent to revoke.

What the Statutes Say

• N.C. Gen. Stat. § 28A-2A-4 (Compel production of a will) – Clerk may summon a person to produce a will or swear to its whereabouts or disposition.
• N.C. Gen. Stat. § 5A-23 (Civil contempt procedures) – Sets the show-cause process and allows confinement until a party complies with a court order.
• N.C. Gen. Stat. § 14-77 (Destroying or concealing a will) – Makes it a Class 1 misdemeanor to destroy or conceal a will for a fraudulent purpose.
• N.C. Gen. Stat. § 28A-2A-8 (Proof of attested will) – Describes how an attested will is proved if not self-proved, including witness affidavits and handwriting proof.

Analysis

Apply the Rule to the Facts: Here, you can file an affidavit asking the clerk to summon the person who earlier said they held the will and order them to bring the original or swear to where it is or how it was disposed of. Because that person later sought administration while claiming no will exists, the sworn response will clarify the inconsistency. If the original cannot be produced, your copy can be considered in a lost-will proceeding, but you will need evidence of due execution, contents, diligent search, and no revocation by the testator. If the other person is hospitalized, the clerk may continue the hearing for good cause.

Process & Timing

1. Who files: Any interested person. Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: An application by affidavit to compel production of the will (no preprinted AOC form; include facts showing a will exists and who likely has it). When: File as soon as you learn someone is withholding or has not produced the will; the clerk will set a compliance date in the summons.
2. The clerk issues a summons ordering the person to produce the will or give a sworn explanation by a date certain. Formal service is required. If the respondent cannot attend due to hospitalization, request a short continuance for good cause.
3. If the respondent fails to comply, the clerk may issue an order to show cause and proceed with civil contempt to compel compliance. If the original is unavailable despite sworn explanation, you may pivot to probating a copy as a lost or destroyed will by presenting affidavits and other required proof.

Exceptions & Pitfalls

• The person can comply by sworn statement explaining where the will is or how it was disposed of; contempt is improper if compliance is impossible.
• Service traps: use formal Rule 4 service for the summons; informal mailings can derail enforcement.
• Copy alone is not enough; be ready to prove a lost or destroyed will with strong evidence (due execution, contents, diligent search, and no revocation by the testator).
• If witnesses are unavailable, plan alternative proof (handwriting affidavits and other competent evidence) to establish due execution.
• Concealing or destroying a will can draw criminal scrutiny; keep communications factual and focused on compliance.

Talk to a Probate Attorney

If you’re dealing with a withheld will or need to prove a lost will, 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.