Short Answer

In North Carolina, start by reviewing the estate file in the Clerk of Superior Court’s Estates Division where the will was probated. The file and the will are public once admitted to probate and often show who prepared the will and which attorney represented the filer. If a later will exists but is being withheld, you can ask the clerk to order its production and, if needed, file a caveat in Superior Court to use subpoenas and discovery to identify the drafting lawyer.

Understanding the Problem

In North Carolina, how do we (as an interested family member) learn which lawyer prepared and filed a will with the Clerk of Superior Court when relatives already probated an older will?

Apply the Law

Once a will is admitted to probate, it stays on file with the Clerk of Superior Court and becomes a public record you can inspect. The court file typically includes the will, the application to probate, and the Clerk’s certificate of probate. Those documents often reveal who filed the will, whether an attorney represented that person, and sometimes the law firm that prepared the will. If someone in North Carolina is withholding a later will, the clerk can order that person to produce it. If an older will has already been probated, you must challenge it by filing a caveat in Superior Court, where you can use subpoenas and discovery to identify the drafting attorney and obtain the drafting file.

Key Requirements

• Access the probate file: Visit or contact the Clerk of Superior Court (Estates Division) in the decedent’s county of domicile to review and copy the probated will and filings.
• Compel a withheld will: File an affidavit with the clerk asking for an order directing anyone in North Carolina holding a later will to produce it or disclose its location.
• Challenge the older will: If a later will exists, file a caveat (will contest) within the statutory period; the case moves to Superior Court where discovery (subpoenas, depositions, document requests) can identify the drafting lawyer.
• Know who can file: The named executor, any devisee, or another interested person may seek probate; if the executor does not act within 60 days, others can apply on 10 days’ notice.
• Public record copies: Certified copies of the will and probate documents are available from the clerk upon request and payment of fees.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-13 (Original wills kept by the clerk) – Original probated wills remain with the clerk and are public court records.
• North Carolina Gen. Stat. § 28A-2A-4 (Compel production of a will) – Clerk may summon a person in NC to produce a decedent’s will or disclose its whereabouts.
• North Carolina Gen. Stat. § 31-32 (Caveat to a will) – A will probated in common form may be contested by caveat within three years of probate.
• North Carolina Gen. Stat. § 28A-2A-2 (Interested person may apply to probate) – If the executor does not apply within 60 days, an interested person may apply after giving 10 days’ notice.

Analysis

Apply the Rule to the Facts: Because relatives already probated an older will, your spouse (as an interested heir) can inspect the public estate file at the Clerk of Superior Court to see who filed it and whether an attorney is identified. If a later will exists but is being withheld, your spouse can ask the clerk to order the person in North Carolina who has it (such as the uncooperative family friend) to produce it or disclose where it is. If the older will is wrong, your spouse must file a caveat within three years of its probate; in that case, Superior Court discovery lets you subpoena the drafting attorney and obtain the will file.

Process & Timing

1. Who files: Any interested person. Where: Clerk of Superior Court, Estates Division, in the North Carolina county where the decedent was domiciled. What: Request to inspect the estate file and obtain copies of the will, AOC-E-201 (Application for Probate and Letters), and AOC-E-304 (Certificate of Probate). When: As soon as possible; records are public once the will is probated.
2. Compel a withheld will: File an application by affidavit asking the clerk to summon the person in NC believed to hold the later will to produce it or state its location. There is no preprinted AOC form; the clerk issues a summons and sets a response/hearing date. Timeframes vary by county.
3. Challenge the older will and identify the drafter: File a caveat with the clerk; the case transfers to Superior Court. Use subpoenas duces tecum, depositions, and document requests to the suspected drafting attorney and witnesses to identify who prepared the will and to obtain the drafting file. When: File the caveat within three years after the older will was probated.

Exceptions & Pitfalls

• You cannot simply present a different will after one is already probated; you must challenge the existing probate by caveat.
• The clerk’s order to produce a will applies to a person in North Carolina; if the holder is out of state, you may need court discovery tools after filing a caveat.
• Power of attorney ends at death; being POA does not grant control over the estate file or distribution decisions.
• Serve caveat papers under Rule 4; informal letters or emails are not enough to trigger transfer to Superior Court.

Talk to a Probate Attorney

If you’re dealing with family members who probated an older will and won’t share the most recent version, 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.