Surviving Probate in the Face of Natural Disasters: What to do in the Case of a Lost or Destroyed Will

As Western North Carolina continues to recover from the catastrophic damage caused by Hurricane Helene in September and October of 2024 and the massive wildfires in April 2025, one issue that people are facing is the loss and destruction of their important documents – including their last will and testament. The last will and testament is one of the very few documents where North Carolina courts require the original   document to be filed for probate after the death of the testator (or maker) of the will. So, what can you do in North Carolina if your original will was lost or destroyed — in a natural disaster or otherwise? 

In order to open a probate estate in North Carolina when the testator’s will has been lost or destroyed, the moving party must comply with the rules set forth for probate in common form.

To do this, the executor named in the lost will, or if the named executor does not apply for qualification within 60 days of the death of the testator, any person interested in the estate, may apply to the Court with the following information: a sworn statement detailing (1) the date of death and domicile of the testator; (2) evidence that the will was properly signed by the testator; (3) the contents of the will; (4) a statement explaining how the original will was lost or destroyed; and (5) that a diligent search has been performed to attempt to locate the original will. The moving party must demonstrate these elements sufficiently to overcome presumption that the lost will was revoked by the testator. 

The first step for a named executor or interested party in the testator’s estate would be to get a certified copy of the decedent’s death certificate and determine the decedent’s state and county of domicile at the time of their death. The next step may be to reach out to family members and/or heirs at law to determine if anyone knows if the testator hired an attorney to draft their will — and reach out to that attorney to request a copy of the purported will. Some attorneys and law firms retain original estate planning documents, particularly wills, in their safe or secure document storage areas. The party seeking to submit the will to probate should do a diligent search of the testator’s personal belongings – including a search of places where important papers are kept, like a safe deposit box, office, personal files, closet, or bedside drawers. These are some common examples of where people store their wills and important legal documents. 

The moving party who is trying to validate the lost or destroyed will has to provide sworn testimony that they used due diligence to locate the original will, that the will was likely not in the testator’s possession when it was lost or destroyed, and that the terms of the will as described reflect the decedent’s intent. If a copy of the purported lost will is not available, its contents may be proven by testimonial evidence from witnesses who knew about the contents of the will and/or the testator’s intent regarding the distribution of their assets. The moving party also has to overcome the presumption that the will was destroyed by the testator — as a testator’s destruction of the original will revokes the will. The party can show that the documents were destroyed in a fire a catastrophic event (like a flood in the mountains) or by some other casualty event.