Blog Finding and Filing the Will with the Probate Court

October 29, 2019

By Cowles Liipfert

By Cowles Liipfert

When someone dies, the person who will be responsible for handling the estate needs to look for the deceased person’s original will and to have it filed with the probate court (the Office of the Clerk of Superior Court in North Carolina) in the county where the decedent resided.

If there is a will, the will probably names an executor, who will be responsible for handling the estate.  If there is no will, the closest family member will generally be responsible for handling a decedent’s estate and will be called the “administrator,” rather than the executor.

If you do not know whether there is a will, the person or people who were closest to the decedent should look for a will and take responsibility for it, if one is found.  

If you do not know where to look, look in places like desk drawers, file cabinets, and boxes of personal papers at home (or at work, if applicable).  Some people keep wills in a safe deposit box at a bank or credit union, but it may be difficult to access the box unless you are a co-owner or you have been specifically given access by the decedent by signature card at the bank or credit union.  If you locate a box and cannot access it, you may need to contact the office of the clerk of court for permission to enter the box.

If you know who the decedent’s lawyer was, the lawyer may have the original signed Will, so you should contact him or her, or notify him or her of the decedent’s death.  If the lawyer has the will, he or she may insist on filing it with the court himself, instead of giving the original to you, but the lawyer should be willing to give a copy to the named executor.

If you find a copy of the will, but cannot locate the original, and if the attorney does not have the original or notes which indicate where the original was to be kept, one possible place to check is with the probate court in the county where the decedent was residing at the time the will was written, as well as the county where he or she resided at death.  The Office of the Clerk of Superior Court in North Carolina will hold original wills filed for safekeeping. The clerk’s office will not give you the original will if one is being held there, even if the decedent had moved to a different county before his or her death, but will advise you if they have a will and they will cooperate with the clerk’s office in the county of the decedent’s residency at death.  Most jurisdictions permit a later discovered will to be admitted to probate, even though a previously probated will has not been set aside. There are no specific procedures in the North Carolina General Statutes dealing with the situation. The clerk of court is vested with exclusive original jurisdiction over wills, but will caveats or probates in solemn form can eventually be determined by a superior court judge.  North Carolina case law appears to require the first will to be set aside before the second will can be admitted to probate, since the probate of the second will is considered to be a collateral attack upon the probate of the first will. This presents a conundrum, or a chicken-or-egg problem, concerning how one should proceed.

Since there are no guidelines in the General Statutes, different counties may follow slightly different procedures.  We suggest filing the second will with the clerk of superior court, who may decline to proceed until a caveat or probate in solemn form of the first will has been concluded.  But the upshot is that the first will can be set aside, and the second will can eventually be probated.

Wills are typically headed by a title like, “Will of John Doe” or “Last Will and Testament.”  A will which was prepared by a lawyer might be stapled to a piece of colored paper (often blue or gray) and might be kept in an envelope marked “Will” or “Estate Planning Documents”, etc.

You might find a handwritten document, which may or may not be titled as a will, but the substance of which may actually be a will.  Handwritten wills (called “holographic” wills) may be valid in North Carolina under certain circumstances. Sometimes, a signed document which simply says “I leave my personal residence to Mary Doe” might be a valid will, even though it is not titled as a will.  Holographic wills must be 100% in the Testator’s handwriting and holographic wills are not witnessed. If a handwritten will is witnessed, it must be probated as a witnessed will.

Holographic wills in North Carolina should be kept with the decedent’s valuable papers or given to a third party, to hold for safekeeping. 

“Codicils” are documents which change or add to the terms of a will without entirely revoking the prior will.  Most people simply write new wills and revoke their old ones, but sometimes they write codicils, instead. Each apparent codicil should be filed for probate with the probate court.  Codicils may be witnessed, just like a will, or they may be handwritten. Holographic codicils are subject to the same rules as holographic wills. A witnessed will may be modified by a holographic codicil.  Both documents must be probated by the probate court.

Whether or not a full estate administration is necessary, the person who has possession of the original will must file it with the probate court in the county of the decedent’s residence after the death of the will-maker (the “Testator”) .

If you find only a copy of the will and cannot find the original, it is possible that you can file the copy with the probate court and present evidence that it should be accepted as the original.  To prevail, however, you will need a credible explanation as to why the original document is not available, and to present evidence to that effect. 

If you have reason to believe that someone has an original will but does not want to produce it, you can ask the clerk of superior court to bring that person in front of a probate judge, and to produce the original will.

It is suggested that you ask an experienced probate attorney to assist you.