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Out of State Wills

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I am frequently asked the following question: “I have a will that was drafted for me out of state. Is it valid in North Carolina?” The answer? It depends.

   If the will was drafted by an attorney in another state, then it will likely be valid and probated-able in NC. If it was a fillable form or something you got off a website, then you’re rolling the dice as to whether it’s valid in ANY state.

   Even if you had your will drafted by an attorney, different states have different laws. While the requirements for a valid will are pretty consistent among the states, there are some differences of which to be wary.

   The general requirements for wills are as follows. Wills must be signed, witnessed, and attested. The testator (creator of the will) must be of legal age, have intent to create the will, and be of sound mind. Most states have similar definitions of these requirements, but they can differ. For example, legal age for most states is 18. However, in Louisiana, a person as young as 14 can create a will. Another example is the witness requirements. Most states require a minimum of 2 witnesses be present and observe the testator signing the will. However, good ol’ Vermont requires a minimum of three witnesses (which is surprising for a state with such a small population).

   There is also the fact that the will itself might be valid but certain provisions in the will may not be. This is especially true if you are moving from a community property state to a state that does not have community property laws. Furthermore, in some states you can disinherit your spouse. In NC, for example, there are laws that protect surviving spouses.

   Beyond validity, the will might need to be updated for practical purposes. Let’s say you moved from New York to North Carolina. You had a will drafted in NY and you named your sister who also lives in NY as your executor. Now that you have moved to NC, your will may still be valid, but your executor now lives more than twelve hours away from you.

           Moreover, when you move, you make changes. Typically, you buy or sell real or personal property, you make new relationships, you become a part of new groups, etc. Your will should be able to account for these changes. If it does not, then it should be updated to fit your new life.

           The best thing to do, if you are moving to a different state, is to have an attorney evaluate your estate plan and make sure it works for you.

Regards,

Brenton S. Begley, JD, LLM Taxation

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-998-5800

Fax: 866-908-1278

401 N. Tryon St. , 10th Floor

Charlotte, NC 28202

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