What happens if a will is Not filed in NC?

Posted on Aug 31, 2015 in Contesting a Will, NC Estate Litigation Attorney

FAQ: What happens if someone refuses to file a will in NC?

Answer: If the executor fails to probate the will within 60 days of the date of death of the testator (decedent/dead person), than any beneficiary or interested person in the estate may apply to be executor by giving 10 days notice to the executor. NCGS 28A-2A-2.

§ 28A-2A-2. Executor failing, beneficiary may apply.
If no executor applies to have the will proved within 60 days after the death of the testator, any
devisee named in the will, or any other person interested in the estate, may make such application,
upon 10 days’ notice thereof to the executor. For good cause shown, the clerk of superior court
may shorten the initial 60-day period during which the executor may apply to have the will proved.

FAQ: What happens if another person want produce the Will so it can be filed?

Answer: In this situation, the Courts in North Carolina permit someone to file an application or an affidavit. In order to do so, the probating party must set forth the facts that Decedent had a will. This must be filed with the Clerk of Court in the county where the decedent resided. The Clerk of that NC county has the ability and power to compel the holder of the will to deliver it. Or else the person holding the will can be put in jail.

This does happen. You know the decedent executed a will. Maybe they even showed you. But now that they died, 2nd spouse/Cousin/Sibling X raided the house and now the Will is gone. Perhaps Cousin X didn’t get exactly what they wanted in Decedent’s will. Maybe Cousin X has ulterior motives, eg. clean out the possessions beforehand or try to inherit intestate or they were disinherited. You can guess their motives. Nonetheless, not you can’t find the testator’s Last Will & Testament.

Here is the statute in N.C. General Statutes:

§ 28A-2A-4. Clerk shall compel production of will.

Every clerk of the superior court having jurisdiction, on application by affidavit setting forth the facts, shall, by summons, compel any person in the State, having in possession the last will of any decedent, to exhibit the same in his court for probate; and whoever being duly summoned refuses, in contempt of the court, to produce such will, or (the same having been parted with by him) refuses to inform the court on oath where such will is, or in what manner he has disposed of it, shall, by order of the clerk of the superior court, be committed to the jail of the county, there to remain without bail till such will be produced or accounted for, and due submission made for the contempt. (C.C.P., s. 442; Code, s. 2154; Rev., s. 3124; C.S., s. 4141; 2011344, ss. 3, 4.)

Kirk Sanders can help you with contesting a will in NC or pursuing fiduciary claims. He is a NC Will Contest Attorney and chair of Hendrick Bryant’s Fiduciary Litigation Section.

Call 336-768-1515

Fiduciary Litigation NC Courthouse

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