Is a Copy of a Will Valid for Probate if the Original Cannot Be Found?

Is a copy of a will valid in North Carolina?

North Carolina requires the Executor of a Will to file the original Will with the court.

Is a Copy of a Will Valid?

When the original will cannot be found it is possible for a copy of a will to be valid for probate. North Carolina allows for the probate of a copy of a Will if you can provide the following information:

  1. The witnesses to the signing of the will sign an affidavit affirming that they in fact witnessed the signing of the will;
  2. A thorough search of the decedent’s assets and cannot find the original Will;
  3. There was verbal knowledge between the deceased and the Petitioner regarding the deceased’s wishes and the placement of the original Last Will and Testament; and
  4. The Petitioner affirms that the terms of the Petition are true and accurate.

If these things can be done, the clerk will issue Letters of Testamentary to the Petitioner who can probate the estate according to the terms of the Will.

If any one of the above cannot be provided, such as you cannot find a witness, then the will is not considered valid and the estate must be distributed according to the North Carolina Intestacy Statute.

This is not a problem if the original Will distributed the assets of the decedent in the same matter as the Intestacy Statute. However, there have been several cases where the decedent’s intentions were far different and those the decedent intended to leave assets to end up with nothing or less while those intended to get nothing end up with a large or larger portion of the estate.

What is the best way to prevent this from being an issue?

First, keep the original safe and secure place. We do not recommend placing your Will in a safe or safety deposit box. If you die, someone needs to have access to your Will and there may not be anyone with authority or access to your safe or safety deposit box. Second, make sure your Executor knows where you keep your original will and the terms of your will. Third, keep your Will in a fireproof, waterproof bag. The important thing is that your Will not be lost or destroyed. A waterproof, fireproof bag with help with this issue. Finally, your attorney should put your witnesses phone numbers with their addresses in the Will where they sign. In today’s world where most people keep their cellphone numbers even after they have move, it is more likely that you will be able to locate a witness when they are needed.