Background
Although North Carolina recognizes several types of wills, practitioners typically draft and execute what is known as a self-proved attested will. This involves an affidavit of the two required witnesses and the testator, made before a notary public, in which the testator declares the will to be his or her last will in the presence of the witnesses and notary. The witnesses, in turn, declare that the will was acknowledged as the testator’s last will in their presence and that they subscribed their names thereto believing that, at the time of execution, the testator was over the age of 18 and of sound and disposing mind and memory.
This formal process of creating a self-proved attested will makes probate of the document much simpler upon the testator’s death. The creation of the self-proving affidavit is later accepted by the court as if it had been taken before such court, and therefore, upon the death of the testator, no further evidence from the witnesses needs to be collected. Hence, there are no issues if the witnesses have died or cannot be located.
However, there is one catch to the simplicity of probating a self-proved attested will: the original document must be produced to the court to avoid significant obstacles in the probate process. To avoid any confusion, “original” means the ink-to-paper document. Many practitioners use blue ink to make the original will easily identifiable since notary embosser seals, which crimp the paper and create a raised impression, have become less common.
N.C.G.S. § 28A-2A-13 mandates that all original probated wills remain in the office of the clerk of superior court as part of the public records and certified copies are issued by the clerk for other counties and states where the decedent may have owned property. Without the original document, if the will was last in the testator’s possession, there is a presumption that the will was destroyed by the testator with intent to revoke which must be overcome by competent evidence. Even when a third party was last in possession of the will, the person attempting to probate the copy of the will has the burden of proving the authenticity of the document and that the original was lost or stolen. This often leads to petitions, hearings and, in some cases, litigation.
While other options exist, possession by the testator is generally the most attractive place to store the original will. Attorneys and law firms offering to store original wills for clients have become less common. Additionally, while most county clerks are required to store original wills in accordance with N.C.G.S. § 31-11, this option is generally unattractive for a variety of reasons. Giving the original to the named executor is also an unattractive option for many reasons.
A testator’s options for storing the original will are often limited to a water-and-fire-resistant lockbox or file cabinet in their home. Unless jointly owned with the executor, which is also problematic, bank safe-deposit boxes are generally not recommended due to access issues upon the death of the testator. Although home storage is often the most attractive option, it has many inherent risks as well and requires a plan for access by the named executor upon the testator’s death. What if a professional fiduciary such as a bank or an attorney is named as the executor? Would it be appropriate for them to have a key to the testator’s home?
Providing proper advice for storage and access to the original will has been an ever-present issue for estate planning attorneys. It is not uncommon for the named executor to be unable to locate the original upon the death of the testator. Attorneys and firms that have historically offered will storage are running out of space, going paperless, and growing weary of the headaches and ethical issues that can arise from storing original documents for clients.
Electronically Stored Wills Effective January 1, 2026
Fortunately, effective January 1, 2026, clients and attorneys will have the option to avoid many issues surrounding storage and access to the original will.
Part VIII of Session Law 2025-33 (HB 388) adds Article 11 to Chapter 31 of the North Carolina General Statutes. The new Article 11 is entitled Electronic Storage of Attested Written Wills by an Attorney.
New N.C.G.S. § 31-72 provides that “[a]t any time during the life of the testator, an attorney … may, at the testator’s direction, create an electronic record of the testator’s attested written will. The electronic record shall include a certification, signed by that attorney, in the form of an affidavit sworn to or affirmed before an officer authorized to administer oaths, that the electronic record of the attested written will is a complete, true, and accurate copy of the attested written will, that the testator expressly authorized the attorney to create an electronic record of the attested written will, and that the testator has been advised that the creation of an electronic record of the testator’s attested written will eliminates the ability of the testator to revoke the attested written will by physical act.”
In addition, subpart (b) provides that “[i]f the attested written will is lost or destroyed after being stored as an electronic record . . ., the loss or destruction shall not be deemed a revocation of the attested written will, nor shall it be deemed a presumption of revocation.”
In most cases, when we speak of creating an electronic record of the will, we are referring to scanning the original document into an electronic PDF file format, although the statutory definition of an electronic record is broader and could include an array of electronic formats and file types.
The certification by the attorney in the form of the affidavit described above may be made at any time during the testator’s life, not just when the will is created. Therefore, if an attorney and client decide to convert a will from 2018 into an electronic record after January 1, 2026, such conversion is permissible provided the requisite affidavit is produced.
The attorney’s certification to create an electronic record of the written attested will is the first aspect of this new tool. The second is the ability for an attorney (who need not be the same attorney who drafted or created the electronically stored will) to create a certified paper copy of the electronically stored will. N.C.G.S. § 31-73 provides that “[a]n attorney … may create a certified paper copy of an attested written will that has been stored as an electronic record … by certifying that the paper copy is a complete, true, and accurate copy of that electronic record.” Furthermore, and most importantly, “[a] certified paper copy of an attested written will stored as an electronic record … may be probated under N.C.G.S. § 28A-2A-8(a1).”
The process to probate a certified paper copy of an electronically stored will is similar to that of probating an original attested paper will, except that proof of handwriting of an unavailable witness or the testator when statements from both witnesses is unavailable are omitted in favor of a general provision regarding proof of the genuineness of the document sufficient to satisfy the clerk. It should, however, be rare that a certified copy of an electronically stored will is not self-proving, given that an electronically stored record of an attested will can only be created by an attorney.
One would assume that an attorney would only create such an electronic record for a will they or another attorney prepared and that any will prepared by an attorney would be self-proving. N.C.G.S. § 28A-2A-8 permits both an original attested paper will and a certified paper copy of an electronically stored attested will to be probated upon a showing that they have been made self-proved in accordance with N.C.G.S. § 31-11.6, with no additional steps. Therefore, a certified paper copy of an electronically stored self-proved attested will is probated with the same simplicity as the original of a self-proved attested will.
Other small modifications to Chapter 31 and Chapter 28 have been made due to this new type of will. For example, Article 2B of Chapter 28, regarding living probate (where a testator can establish the validity of a will during their lifetime), has been amended to reference the availability of the living probate process for a certified paper copy of an electronically stored will.
This new tool does not alter the underlying formalities of creating a self-proved attested will. It does not authorize the creation of an electronic will or any type of remote witnessing. The attesting witnesses must still sign the will in the presence of the testator, and, for a self-proving will, appearance before a notary public and the testator to execute the requisite affidavit is still required. This new tool simply allows the original document created under the usual formalities to become less important after conversion to an electronic record. That said, the statute does not preclude the original document from being probated even if an electronic record of the same has been created.
Conclusion and Uncharted Waters
Effective January 1, 2026, attorneys have an exciting new tool to offer clients when executing a will. In my opinion, the use of this tool should be encouraged by practitioners and eventually become the default practice among estate planners.
The benefits of an electronically stored will are plentiful: reducing potential litigation, minimizing the chance of fraud, and lessening the importance of storage and access to the original. The consequence that must be clearly conveyed to clients is that by creating an electronically stored will, the method of revocation becomes limited to a revocatory writing with the same formalities of a written will. In contrast, a will that is not electronically stored may be revoked in writing under the will formalities or by being burnt, torn, obliterated, or destroyed by the testator, or at the testator’s direction, with intent to revoke. In the modern era, revocation of a will by physical act is not common.
To see the utility, imagine the following scenario: An attorney prepares a will that disinherits the intestate heirs, scans the executed original, and releases it to the client. Five years later, the client dies, and the executor cannot locate the original will. The attorney possesses an exact electronic replica, but because the original cannot be found, the attorney must pursue a lost will proceeding and serve the intestate heirs, who are likely to prevail under the presumption that because the will was last in the possession of the testator, it was revoked by physical act. In reality, the will was almost certainly not revoked, and the result is unjust. Under the statute, the attorney may certify a paper copy of the electronic record, avoid the lost will proceeding, and carry out the client’s intent.
While this new tool is immensely useful, it raises questions about internal office procedures for estate planning attorneys. For example, what should be done with the original will after it has been converted to an electronic record? In my opinion, the practice for handling the original should remain largely the same. The testator should store it securely in their home, and the attorney should note and have the client acknowledge in writing that destruction of the original document does not revoke the will. As previously noted, creating an electronic record of the will does not preclude probating the original through traditional means.
A certified paper copy of an electronically stored will can only be created by an attorney. Therefore, if the testator’s executor decides to handle estate administration pro se, having the original will remains necessary. Additionally, it is always possible for an electronic record to become corrupted or destroyed as a result of cybercrime (though this risk should be minimal if attorneys and firms prioritize cybersecurity). In such a case, the original will serves as a critical backup.
This also raises the question of whether any certified paper copies of the electronically stored will should be furnished to the testator. Providing such a copy could offer another layer of protection if both the electronic record and the original are lost. On the other hand, for many of the same reasons attorneys avoid creating duplicate or triplicate original wills, having multiple certified paper copies circulating is problematic if the will is later revoked. Moreover, certified paper copies could be fraudulently altered by a third party. Hence, it may be best practice for attorneys to certify a paper copy of an electronically stored will only for direct delivery to the court or to the executor upon the testator’s death.
These are uncharted waters, and attorneys will likely need to fine-tune their procedures as precedent develops and county clerks begin probating certified paper copies of electronically stored wills.
Andrew M. Brower is a Board Certified Specialist in Estate Planning & Probate Law at Law Firm Carolinas, which has five offices and a statewide practice. For questions about estate planning and administration, wills and trusts, guardianships, or Medicaid/long-term care and asset protection, contact Law Firm Carolinas.