New Rules for 2026: The Creation of Electronically Stored Wills in North Carolina

In order to create an electronically stored will, the testator must direct a North Carolina licensed attorney to create it.  To do that, the following steps must occur: (1) an attorney, at the testator’s direction, must create an affidavit (“Storage Affidavit”) stating that the electronic record of the testator’s attested will is a complete, true, and accurate copy of the attested written will; (2) the affidavit must state that the testator expressly authorized the attorney to create an electronic record of the attested written will; and (3) 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.  Key points to remember are that the Storage Affidavit must be prepared during the testator’s lifetime and at the testator’s direction.  There is no time limit on when the electronically stored will can be created, as long as it happens during the testator’s lifetime and at their direction.  So, an attested written will created by a testator in 1950 can be converted into an electronically stored will in 2026.   

Once the electronically stored will has been created, it must be securely stored by the attorney who prepares the Storage Affidavit.  At the testator’s death, an attorney must 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” and the process of creating a physical document to offer to probate is referred to as “papering out” the electronic record of the will by converting it from an electronic form into paper form by adding additional affidavits.  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 a North Carolina licensed attorney, although it does not have to be the same attorney who drafted the original will or the same attorney who created the electronically stored will. A North Carolina attorney can draft a “Certified Copy Affidavit” that states that the new paper copy is a complete, true, and accurate copy of the testator’s electronically stored will.  The printed copy of the electronically stored will, along with the Certified Copy Affidavit, are then filed with the Clerk of Superior Court after the testator’s death (similar to how an original will is filed) and then the probate process would continue as usual. 

The final product may contain as many as three affidavits: one if the will is self proving, a second when the will is stored as an electronic record (Storage Affidavit), and a third when the certified paper copy is created or “papered out” (Certified Copy Affidavit).  Only the Certified Copy Affidavit would bear an original ink-to-paper signature when it is submitted to the Clerk of Superior Court for probate.