Short Answer

If the original will can’t be located in North Carolina, the law presumes it was revoked if it was last in the decedent’s possession. That presumption can be overcome, and a copy may be probated, but only with strong evidence that the will was duly executed, what it said, why the original is missing, and that a diligent search was done. If no will is proved, the estate passes by intestacy to the legal heirs.

Understanding the Problem

In North Carolina probate, the question is: can you open and administer an estate when the original will is missing? You need to know who may start the process, what proof is required to use a copy, and what happens if you cannot. Here, you are the only living heir, and the original of an older will can’t be found.

Apply the Law

North Carolina allows a “lost will” to be admitted if the proponent proves specific elements to the Clerk of Superior Court. If the original was last in the decedent’s possession and cannot be found after death, the law presumes the decedent revoked it; that presumption can be rebutted with facts showing loss or destruction without the decedent’s intent to revoke. If a will is not admitted, the estate is administered under intestate succession. The Clerk of Superior Court has original jurisdiction over probate. A named executor typically files first; if no executor applies within 60 days of death, any interested person may apply after giving notice.

Key Requirements

• Death of the testator: You must establish the person has died.
• Due execution: Show the missing will met signing and witnessing formalities (or holographic requirements, if handwritten).
• Contents of the will: Prove what the will said; a copy helps but is not required.
• No revocation by the testator: Prove the loss or destruction was not by or at the decedent’s direction with intent to revoke; this rebuts the missing-original presumption.
• Diligent search: Prove a thorough, good‑faith search in the places the will would likely be found.
• Forum and timing: File with the Clerk of Superior Court in the county of domicile; if the named executor does not apply within 60 days, an interested person may apply after giving 10 days’ notice.

What the Statutes Say

• Proceeding to compel production of a will (G.S. 28A-2A-4) – Clerk can order someone to produce a will or state its whereabouts.
• Revocation of written wills (G.S. 31-5.1) – A will can be revoked by later writing or by physical act with intent.
• Time to file a caveat (G.S. 31-32) – Generally three years after probate to contest a will.
• Intestate succession by descendants (G.S. 29-15) – If no valid will, children inherit when no spouse survives.

Analysis

Apply the Rule to the Facts: If your mother dies and the original can’t be found, the Clerk will presume she revoked it if it was last in her possession. You can still try to probate a copy by proving proper execution, its contents, why the original is missing, and that you conducted a diligent search. If you cannot meet that proof, her estate passes by intestacy—because you are the only living heir and no spouse survives, you would inherit under North Carolina’s intestacy rules.

Process & Timing

1. Who files: The named executor; if none acts, any interested person (such as an heir). Where: Clerk of Superior Court in the county where the decedent was domiciled. What: Verified application or petition to probate a lost will (no standard AOC form), often with AOC‑E‑201 (Application for Probate and Letters), any copy of the will, affidavits from witnesses (AOC‑E‑300/E‑301), and an affidavit detailing the diligent search. When: If the named executor does not apply within 60 days of death, an interested person may apply after giving 10 days’ notice.
2. For a contested or uncertain situation, file for probate in solemn form and serve interested parties; the Clerk sets a hearing. Timeframes vary by county, often several weeks to schedule.
3. After proof, the Clerk issues AOC‑E‑304 (Certificate of Probate) and, if requested, Letters Testamentary or Letters of Administration with Will Annexed, allowing the personal representative to administer the estate.

Exceptions & Pitfalls

• Missing‑original presumption: If the will was last in the decedent’s possession and is missing, the presumption of revocation applies; rebut it with concrete facts (e.g., third‑party custody, loss by accident, or destruction without the decedent’s consent).
• Don’t skip the search: Courts expect a documented, diligent search (home, safe deposit box, attorney files, Clerk’s will‑for‑safekeeping). Vague efforts are not enough.
• Use the right proof: If the will was not self‑proved, line up subscribing witnesses or provide substitute competent evidence as allowed; for handwritten wills, you need handwriting testimony.
• POA realities: A power of attorney ends at death and doesn’t confer inheritance. But a fiduciary relationship (like agent under POA) can affect later litigation about influence or custody of the will.
• Compel production: If someone is withholding the will, ask the Clerk to order production rather than relying on informal requests.

Talk to a Probate Attorney

If you’re dealing with a missing will and need to preserve your rights or probate a copy, 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.