Compelling Production of a Will

What happens if one of your loved ones has died and left you property, but a good-for-nothing family member refuses to turn over the will? How do you force that person to turn over the will?  North Carolina gives the clerk of court the power to compel that person to turn over the will by threat of jail time.

North Carolina favors putting a will through probate so that parties can know what rights they have to the deceased person’s property. North Carolinians have the right to dispose of their property after they die. When someone stands in the way of this right by hiding that person’s will, clerks have the power to force individuals to turn over the will.

Under N.C. Gen. Stat. § 28A-2A-4, the person who wants the will can file a sworn affidavit with the clerk detailing the situation. The person who possesses the will then be summoned to bring the will before the clerk. 

If the person has the will and refuses to turn it over, refuses to tell the clerk where the will is, or refuses to say how he disposed of the will, then the clerk can hold him in contempt of court. This means that the individual who refuses the clerk can be put in jail without bail until he either produces the will, tells the clerk where the will is, or tells the clerk what he has done with the will.

If the person summoned before the clerk of court can produce the will or tell the clerk what he has done with the will, then he must do so. However, if it is impossible for the individual to obey the clerk’s order, then he will not face contempt of court and jail time.

This petition to compel production of a will can be a powerful tool in the hands of an estate beneficiary.  Clerks typically require the production of the will in order to open an estate.  Sometimes, individuals who want to keep control of the deceased person’s property will refuse to turn over the will. To keep control of the property, these people might hide the will to prevent the estate from being opened and property from being passed to the heirs.  However, the threat of jail time often causes people to change their minds.

Is the Will Lost? For a related discussion on Lost Wills, see our article on Petition to Probate a Lost Will at http://willcaveat.com/probating-lost-wills/

The estate litigation attorneys W. Kirk Sanders and Benjamin C. McManus at Hendrick Bryant have experience in compelling the production of wills and other estate litigation issues.  CALL the North Carolina estate litigation attorneys at Hendrick Bryant today at (336) 723-7200 to set up an appointment to discuss your matter.

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Compel Production of a Will

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