I am frequently asked the following question: “I have a [insert legal document] that was drafted for me out of state. Is it valid in North Carolina?” The answer? It depends. Legal documents like wills, trusts, and powers of attorney are typically set up to be valid in any state. However, there are further considerations to … well consider.
If the document was drafted by an attorney in another state, then it will likely be valid and usable 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.
If the document was drafted by an attorney, different states have different laws. While the requirements for a valid estate planning documents 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 the intent to create the will, and be of sound mind. Most states have similar definitions of these requirements, but they can differ. For example, the 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 to 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).
Other estate planning documents are similar to wills in that most require a witness. Some just require a signature and a notary. However, each state may differ in their requirements. Most states tend to have some sort of law that basically says that if a legal document was validly created under the laws of another state, the new state will accept it notwithstanding the different standards.
There is also the fact that the legal document itself might be valid but certain provisions in the legal document 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 document 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 estate plan 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.
Elder Law Attorney
