By Cowles Liipfert

What do you do if someone wrote a will, but the will cannot be found after the testator’s death?

Will that person’s estate pass to his or her heirs according to the North Carolina intestacy laws, which are applicable when a person dies without a will?

No.  It is possible in North Carolina to probate either a lost will or a will which has been inadvertently destroyed without the testator having the intent to revoke the will.

In North Carolina the Clerk of Superior Court has jurisdiction to probate a lost or destroyed Will.  The North Carolina General Statutes do not provide a special procedure to be followed, but the right to probate a lost will is established by case law.  See In re Hedgepeth, 150 N.C 245 (1909), concerning the probate of a Will in common form, i.e. the informal procedure under which most wills are probated.  Also see In re Will of Herring 19 N.C. App. 357 (1975) where a lost will was probated in solemn form, which is a formal and binding procedure.

There are no printed forms furnished by the clerk’s office for the probate of a lost or destroyed will, so we recommend that an application for probate be drafted by an attorney.

There is no case law or statutory law concerning who may apply for probate of a lost or destroyed Will, but the persons who may apply for the probate of an existing will include the executor named in the will or, if the named executor fails to apply for probate within 60 days after the date of death, any person interested in the estate – whether under the will or under the intestate succession laws – may apply.

The person propounding the lost or destroyed will for probate must provide evidence of the following:

1. The death and domicile of the testator.  This is usually done by a sworn statement that the testator has died, accompanied by a certified copy of the death certificate and a sworn statement that the testator was a resident of the county at death.

• Evidence that the will was properly executed.  A photocopy of the will would provide evidence, if available, but if not available, this can be proven by affidavits from subscribing witnesses, if living and available.  The Clerk of Court determines whether the evidence is sufficient.

• The contents of the will.  Usually a copy of the will, if available, is admitted into evidence, but if a copy is not available, the contents may be proven by the testimony of witnesses (not necessarily by subscribing witnesses on a witnessed will).   

• A statement that the will was lost or was destroyed without the testator’s intent to revoke the will.  The application may describe the circumstances that resulted in the loss or destruction of the will, such as a fire or a move by the testator to another house, or perhaps to a home for the elderly.

The evidence must be sufficient to overcome a presumption that the will was revoked.  Sometimes a will may be given to someone else for safekeeping, but that person later loses the will.

• Evidence that there was a diligent search performed for the original Will, in places where it would be likely to be found.  We recommend that the propounder describe the places searched and the description of the search.  

If the testator had a safe deposit box at his or her bank – that would be an important place to look.  If the name of the attorney or law firm that drafted the will is known, their office should be checked.  Also, wills are occasionally filed for safekeeping with the office of the Clerk of Superior Court of the county where the testator resided at the time the will was written.  Searches should include the testator’s valuable papers, copies of tax returns, or sometimes special places, such as a family Bible.

With a probate in common form, the evidence will often be filed with the application, and the Clerk will rule on the evidence informally. Normally, if the propounder submits sufficient evidence, the Clerk will admit the will to probate.  However, some Clerks will require a hearing. 

A caveat or will contest may be filed for a lost or destroyed will, following statutory procedures.  A caveat proceeding is heard in Superior Court and not before the Clerk.  If a will has already been admitted to probate in common form, the matter will be transferred to Superior Court to determine whether the will was properly the testator’s will – even is the caveat is not filed until after the probate in common form.  

A probate in solemn form is a procedure in which the clerk issues summonses to all persons interested in the estate and holds a hearing.  A probate in solemn form will be binding and will not be appealable if no will caveat is filed before or during the hearing.  That is, if someone wants to challenge the validity of a will submitted for probate in solemn form, they must either file a caveat before the probate hearing or raise the issue at the hearing, because the probate will otherwise be final and binding.  If the caveat is filed in a timely manner, however, the matter will be transferred to Superior Court to determine whether  the Will is valid, without a ruling by the Clerk.

Consequently North Carolina law provides that a Will may be probated which has been lost or inadvertently destroyed.