Short Answer

North Carolina can admit a lost or damaged will to probate, but you must prove specific facts to the clerk. If the original cannot be used, you may ask the court to probate a “lost or destroyed” will using a copy or other evidence. You must show, by clear, strong, and convincing evidence, that the will was duly executed, what it said, that it was not revoked, and that you conducted a diligent search. If the document is damaged but the original ink signatures remain legible, the clerk may still be able to probate the original with standard witness proof.

How North Carolina Law Applies

North Carolina clerks have authority to probate a will even if the original is lost or destroyed before filing. When a will goes missing or is ruined in the mail after the person has died, you can file a petition to probate a lost or destroyed will. A photocopy, scanned image, draft, or the drafting attorney’s file can be used as evidence of the will’s contents; however, a copy is not automatically accepted as the will itself. You must meet the evidentiary requirements described below.

If the paper is damaged but still shows the testator’s and witnesses’ original signatures, the clerk typically proceeds with normal proof (for example, affidavits from the witnesses). If entire pages are missing or signatures are illegible, treat it as a lost or destroyed will.

Key Requirements

• What you must prove for a lost or destroyed will. The proponent (often the named executor or a beneficiary) must establish, with clear, strong, and convincing evidence:

  • The testator has died.
  • The will was properly executed under North Carolina law (or other law that North Carolina recognizes).
  • The contents of the will (a copy is helpful, but not required).
  • The original was lost or destroyed without the testator’s intent to revoke it (for example, it was damaged or lost by the postal service or another third party).
  • A diligent search was conducted in places the will would likely be found (home files, safe deposit box, attorney’s office, clerk’s office, mail tracking, etc.).

• Due execution. For a typed, witnessed will, you ordinarily prove due execution through witness affidavits or testimony. If one witness is available, you can combine that with handwriting proof for another witness and the testator; if no witnesses are available, other competent evidence can be used to satisfy the clerk.

• Contents. A photocopy or scan of the signed will is strong evidence of contents, but even a reliable witness who saw the will or the drafting attorney’s file can suffice.

• Non‑revocation. If the original was last in a third party’s custody (for example, with the attorney or lost by the mail carrier) and then went missing, that supports non‑revocation. If the original was last in the testator’s possession and cannot be found after death, North Carolina presumes revocation—but you can rebut that with facts showing loss, accident, or third‑party destruction.

• Self‑proved wills. A copy showing a proper self‑proving affidavit can help show due execution, but you still need to prove loss and non‑revocation when the original is unavailable.

Process & Timing

1. Collect evidence fast. Gather any copy or scan of the will, the drafting attorney’s records, mail tracking or carrier loss documentation, and names/contacts of the subscribing witnesses and notary. Document your search (where you looked and when).

2. Choose how to file. File an application for probate in common form or a verified petition for probate in solemn form in the clerk’s office of the county where the decedent lived. Many practitioners use solemn form for lost‑will cases so all interested parties receive notice and the result is binding if unchallenged.

3. Attach proof. Include any copy of the will (if available) and submit affidavits from the subscribing witnesses. If a witness is unavailable, add handwriting affidavits and any other competent evidence the clerk will accept.

4. Hearing before the clerk. The clerk decides whether the evidence meets the clear, strong, and convincing standard. If an interested party contests, the matter is transferred to Superior Court for a caveat proceeding.

5. If the original is damaged but legible. Present the original to the clerk with standard proof (self‑proved affidavit, or witness affidavits/testimony). If pages or signatures are missing or unreadable, proceed as a lost‑will petition.

6. Appointment of the personal representative. Once the will is admitted, the clerk issues the certificate of probate and (if requested) letters to the executor or, if necessary, an administrator with will annexed.

What the Statutes Say

• G.S. 28A-2-4: Confirms the clerk of superior court’s original jurisdiction over probate matters, including admitting wills.
• G.S. 31-3.3: Sets the execution requirements for a typed, witnessed (attested) will—key to proving due execution when the original is lost.
• G.S. 31-11.6: Describes self‑proving wills and the effect of a proper self‑proving affidavit on proof of execution.
• G.S. 28A-2A-8: Explains how a clerk proves an attested will, including alternatives when witnesses are unavailable and allowance for other competent evidence.
• G.S. 28A-2A-9: Sets proof requirements for handwritten (holographic) wills, relevant if the lost document was holographic.
• G.S. 28A-2A-16: Authorizes the clerk to take proof by affidavit—useful when witnesses cannot appear in person.
• G.S. 28A-2A-7: Provides for probate in solemn form, where parties receive notice and the result is binding if not contested.
• G.S. 28A-2A-4: Allows a proceeding to compel production of a will if someone else has it and won’t deliver it.
• G.S. 31-11: Permits depositing a will with the clerk for safekeeping during the testator’s lifetime—an option to prevent mailing losses.
• G.S. 28A-2A-1 and G.S. 28A-2A-2: Identify who may apply to probate a will and when other interested persons may apply if the named executor does not act.

Exceptions & Pitfalls

• Presumption of revocation. If the original was last known to be in the testator’s possession and cannot be found after death, North Carolina presumes the testator revoked it by destroying it. You can rebut this with evidence of loss in transit, third‑party custody, fire/flood, or other circumstances showing no intent to revoke.

• Only a copy? A photocopy or scan does not get admitted by itself. It is evidence toward the will’s contents; you still must prove due execution, loss, non‑revocation, and diligent search.

• Damaged originals. If ink signatures are intact, the clerk may still probate the original with witness proof. If signatures or pages are missing, be prepared to proceed as a lost‑will case.

• Mailing risk. Mailing an original is risky. If the will is lost between you and the courthouse, expect to gather detailed proof (including postal tracking, loss claims, or carrier correspondence) to show third‑party loss and non‑revocation.

• Contested cases. If an heir or prior‑will beneficiary objects, the clerk transfers the case to Superior Court for a caveat proceeding. Build your record early with affidavits and witness testimony.

Helpful Hints

• Do not mail an original will if you can avoid it. Hand‑deliver it to the clerk or deposit it for safekeeping during life under G.S. 31‑11.
• If you must mail, use tracked, insured delivery and keep a scanned copy of the signed will and envelope details.
• If the will is lost in transit, immediately request written confirmation from the carrier and gather tracking history—this supports non‑revocation.
• Contact the drafting attorney; their file often has a signed copy, drafts, or detailed notes that help prove contents and execution.
• Line up subscribing witnesses quickly for affidavits; if a witness is unavailable, be ready with handwriting affidavits and other competent evidence.
• Consider filing in solemn form to bind interested parties if no one contests at the hearing.

Talk to a Probate Attorney

If a will was lost or damaged in the mail, our firm can help you prove what’s needed, collect witness affidavits, and guide you through a lost‑will petition. 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.