On January 1, 2026, a new kind of will can be offered for probate in North Carolina.
Session Law 2025-33, Part VIII adds a new Article 11 to Chapter 31 of the General Statutes, allowing an attested written will to be stored as an electronic record and later offered for probate as a certified paper copy.
What is an Attested Written Will?
An
attested written will is one of two kinds of written wills currently recognized under North Carolina law. The other is a holographic, or handwritten, will.
G.S. 31-3.2. Unlike a holographic will, which must be entirely in the handwriting of the testator (the person who makes the will) and requires no witnesses, an attested written will may be typed or handwritten and must be signed by the testator and at least two witnesses. To be valid as an attested written will in North Carolina:
- The instrument must be signed by the testator. G.S. 31-3.3(a).
- The instrument must be attested by at least two competent witnesses. G.S. 31-3.3(a).
- The testator must have intent to sign the will and actually sign the will or have someone else sign the testator’s name in the testator’s presence and at the testator’s direction. G.S. 31-3.3(b).
- The testator must signify to the attesting witnesses —when the witnesses are together or separately to each witness— that the will is the testator’s instrument by signing it in their presence or acknowledging the testator’s prior signature. G.S. 31-3.3(c).
- The attesting witnesses must sign the will in the presence of the testator but need not sign it in the presence of each other. G.S. 31-3.3(d).
This might seem like a lot of work, but these formalities required for execution of an attested written will make the will easier to authenticate after death. An attested written will may even contain an extra affidavit that alleviates the need for the witnesses to provide additional evidence after the testator’s death. This type of affidavit is called a self-proving affidavit.
G.S. 31-11.6.
The Problem of Lost Wills
Attested written wills are relatively straightforward to probate pursuant to the requirements set out in
G.S. 28A-2A-8, as long as the original attested written will can be located after the testator’s death. If it cannot, or if only a photocopy can be located, the attested written will becomes a
“lost will” that can be difficult and costly to probate. To make matters worse, if the will was last in the possession of the testator, a rebuttable presumption arises that the testator intended to revoke the will.
In re Wall’s Will, 223 N.C. 591, 592 (1943). (For a comprehensive guide on the intricacies of probating lost wills, see my colleague Meredith Smith’s blog post “
Where Oh Where Could My Lost Will Be?”)
The frequency by which wills go missing because they were in fact revoked by a testator is beyond the scope of this blog post, although anecdotal evidence suggests it is unlikely. What is clear is that wills can be lost for a variety of reasons—a move, a natural disaster, mental decline, ordinary forgetfulness—none of which have to do with revocation. When this happens, it will take more time, effort, and cost to probate the lost will. In the worst-case scenario, a testator executes a will, the will is lost, the presumption of revocation applicable to the lost will cannot be rebutted, and the lost will is not admitted to probate. Under those circumstances, the estate would be administered as an intestate estate, even though the decedent had executed a will.
Enter the Electronically Stored Will
The difficulty in probating a lost will, along with issues related to storage and safekeeping of wills, have given rise to a solution: the statutory ability to store an attested written will as an electronic record (also referred to in this post as an
electronically stored will). This ability is coupled with a new statutory process for subsequently printing and offering the electronically stored will for probate after the testator’s death.
Pursuant to a new Article 11 of G.S. Chapter 31, an electronically stored will may be created at any time during the testator’s life. It must be created at the testator’s direction by an attorney licensed in North Carolina. G.S. 31-72(a).
To create an electronically stored will, the attorney (at the testator’s direction) must create an electronic record of the testator’s written attested will.
Id. The term “electronic” is defined as “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities,” and the term “record” is defined as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” G.S. 31-71(1); -71(2). Under the definitions in G.S. 31-71(1) and -71(2), an electronic record would include, but not be limited to, a digital file such as a PDF or JPEG.
The attorney creating the electronically stored will must add a statement signed by the attorney in the form of an affidavit sworn to or affirmed before an officer authorized to administer oaths to the record. G.S. 31-72(a). The affidavit must state the following:
- 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.
The third part is important because, under G.S. 31-72(b), the presumption of revocation, discussed above as applicable to lost wills, does not apply to an electronically stored will; therefore, the testator must be advised that if the testator authorizes their will to be electronically stored, the testator loses the ability to later revoke the original attested written will by physical act such as tearing it up, burning it, or otherwise physically destroying it. G.S. 31-72(b); -5.1(2).
The testator could still rip up or otherwise destroy the original, paper attested written will after it is stored electronically, but that physical act would not have the effect of revocation of the will.
Id. This is a modification of the rule in
In re Wall’s Will for attested written wills that are stored as an electronic record under the new Article 11 of G.S. Chapter 31. Prior to the enactment of S.L. 2025-33, the loss of a will in the possession of the testator gave rise to a rebuttable presumption of revocation. This presumption does not exist if the testator authorizes the will to be electronically stored. To ensure that testators are sufficiently warned about the subsequent inability to physically revoke the will,
Session Law 2025-33 modifies G.S. 31-5.1(s) to provide that a written will may be revoked by being “burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in the testator’s presence and by the testator’s direction,
except as otherwise provided in Article 11 of this Chapter” (emphasis added).
Does the New Law Apply to Every Attested Written Will?
Yes. S.L. 2025-33 applies to every attested written will regardless of when the will was executed. S.L. 2025-33, Part XIII, Section 13(b). For example, the testator who executed an attested written will in 2018 could, on or after January 1, 2026, direct an attorney to create an electronically stored version of that will in accordance with G.S. 31-72. Likewise, a testator could sign a new attested written will on or after January 1, 2026 and direct an attorney to create the electronically stored version immediately after signing it. There is no time limit on when the electronically stored will can be created, as long as it happens during the testator’s life and at the testator’s direction.
Probating an Electronically Stored Will
After the electronically stored will has been created, another set of steps must be followed to convert the electronically stored will into a physical document that can be offered for probate with a North Carolina court. This physical document is referred to in the statute as a certified paper copy of an attested written will stored as an electronic record (or
certified paper copy). G.S. 31-73. As with the creation of an electronically stored will, the only person who can create a certified paper copy of an electronically stored will is an attorney licensed in North Carolina—although there is no requirement that it must be the same attorney that created the electronically stored will. G.S. 31-73(a).
To create the certified paper copy of the electronically stored will, the attorney must:
- Create a paper copy of the electronically stored will by printing it out. This paper copy will include the certifying affidavit signed by the attorney who created the electronically stored will.
- Certify, in the form of an affidavit sworn to or affirmed before an officer authorized to administer oaths, that the paper copy is a complete, true, and accurate copy of the electronically stored will.
- Attach the certification to the printed copy of the electronically stored will.
By completing the above steps, the attorney is “papering out” the electronic record of the will by converting it from an electronic form into paper form and adding an additional affidavit. This means that a certified paper copy must have at least two affidavits attached to it and, in some cases, it may have three: one if the will is self-proving, a second when the will is stored as an electronic record, and a third when the certified paper copy is created; however, only one affidavit will bear an original ink signature: the final, certifying affidavit when the certified paper copy is created.
The certified paper copy may be created at any time after the attested written will has been stored as an electronic record. G.S. 31-73(a). This can be done during the testator’s lifetime, and the certified paper copy can be presented to the court to seek a judicial declaration that the will is valid during the testator’s lifetime—a judicial process known as living probate. G.S. 28A-2B-1(b).
After the death of the testator, either the paper attested written will or the electronically stored attested written will can be offered for probate. The process of probating the paper attested written will is set out in
G.S. 28A-2A-8(a) and allows the paper will to be probated in the following manner:
- Upon the testimony of at least two of the attesting witnesses.
- If the testimony of only one attesting witness is available, then with all of the following:
- (a) The testimony of the witness.
- (b) Proof of the handwriting of at least one of the attesting witnesses who is dead or whose testimony is otherwise unavailable.
- (c) Proof of the handwriting of the testator, unless the testator signed by the testator’s mark.
- (d) Proof of other circumstances that satisfy the clerk of the superior court as to the genuineness and due execution of the will
- If the testimony of none of the attesting witnesses is available, then with both of the following:
- (a) Proof of the handwriting of at least two of the attesting witnesses whose testimony is unavailable.
- (b) Compliance with subparagraphs c. and d. of paragraph 2 above.
- Upon a showing that the will has been made self‑proved in accordance with G.S. 31-11.6.
The process of probating a certified paper copy of an electronically stored attested written will largely follows the same process as the probate of a paper attested written will.
G.S. 28A-2A-8 has been amended to add a new subsection (a1) setting out the conditions for probating the certified paper copy and allows the certified paper copy to be probated in any of the following ways:
- Upon the testimony of at least two of the attesting witnesses.
- If the testimony of only one attesting witness is available, then with both of the following:
- (a) The testimony of the witness.
- (b) Proof of other circumstances that satisfy the clerk of the superior court as to the genuineness and due execution of the will.
- If the testimony of none of the attesting witnesses is available, then upon compliance with subparagraph b. of paragraph 2 above.
- Upon a showing that the attested will has been made self-proved in accordance with G.S. 31-11.6.
The process is identical to probating a paper attested written will, except for the evidence that may be offered if only one witness or no witnesses are available. For a certified paper copy, these subsections omit references to the handwriting of the testator or the unavailable witness and instead rely on proof of circumstances that satisfy the clerk as to the genuineness and due execution of the will (in bold above). G.S. 28A-2A-8(a1)(2); -(a1)(3). While proof of handwriting is omitted from these subsections, it is not expressly prohibited, and it is possible that proof of handwriting could still be offered as proof of circumstances as to the genuineness and due execution of the will, along with any proof that is satisfactory to the clerk.
Is an Electronically Stored Will the Same as an Electronic Will?
No. An electronically stored will is not the same as an electronic will. An
electronic will is a will that is created electronically in all aspects: meaning that the will is signed, witnessed, and notarized (if applicable), by electronic means.
See Section 5,
Uniform Electronic Wills Act, Uniform Laws Commission (2019). An electronic will cannot exist as a paper document until it has been electronically created—that is, it can only be printed or “papered out” after it has been electronically signed. By contrast, an electronically stored will must exist as a paper document
before an electronic version can be created, and specifically, it must be an attested written will under
G.S. 31-3.3. Holographic wills, for instance, are not eligible to become electronically stored wills, as the new electronic storage statute only applies to attested written wills.
Although an electronic will created under the laws of another state may be recognized as valid pursuant to
G.S. 31-46 and thus may be offered for probate in North Carolina,
there is no North Carolina statute that authorizes the creation of an electronic will under North Carolina law.
Instead, beginning January 1, 2026, a testator may direct an attorney to create an electronically stored record of the testator’s attested written will that could one day be offered for probate by submitting a certified paper copy of that electronically stored will.
