Are My Out-of-State Estate Planning Documents Valid?
You’ve Moved to North Carolina. Are Your Out-of-State Estate Planning Documents Still Valid?
If you’ve recently moved to North Carolina, you may be wondering if the will, trust, and powers of attorney you created in your previous state are still effective. The legal answer is, “it depends.” While the U.S. Constitution requires states to give “full faith and credit” to the public acts of other states, the practical reality is that out-of-state documents can cause significant and costly problems for your family.
Anyone who moves to a new state should have their documents reviewed by a local attorney. Here’s why.
The Problem with Out-of-State Wills
While your will may be considered legally valid, it may not work as intended in North Carolina, especially when it comes to real estate. North Carolina law has very specific “magic words” that must be included in a will for it to be probated smoothly. If this language is missing, the Clerk of Court may refuse to accept the will, or it may be invalid for the purpose of transferring North Carolina real estate. This can force your family into a complex and expensive ancillary probate process, as if you had died without a will at all.
Furthermore, a will-based plan requires a separate probate in every state where you own real estate. If you own property in three different states, your family will have to go through three separate probates.
The Challenge with Powers of Attorney
A Power of Attorney from another state is often difficult to use in North Carolina. Financial institutions may be hesitant to accept a document that references out-of-state laws they are unfamiliar with, causing delays when your agent needs to act.
More importantly, many “short form” powers of attorney do not grant the specific, advanced powers needed for effective asset protection and long-term care planning. Your agent may find they lack the legal authority to take the steps necessary to protect you and your assets.
Delays with Health Care Documents
In a medical emergency, time is critical. If you present a Health Care Power of Attorney from another state to a North Carolina hospital, their legal department will likely need to review and approve it before your agent can make decisions. This can cause dangerous delays in your care.
The Solution: A Local Review
Your estate plan should work every time, without question or delay. The only way to ensure that is to have your documents reviewed by an experienced attorney who is familiar with North Carolina law. A local review can identify any potential issues and allow you to update your plan to ensure it functions seamlessly in your new home state.
If you have recently moved to North Carolina, our attorneys can review your existing estate planning documents to ensure they provide the protection you and your family need. Call our office to schedule a consultation. Call our office at (919) 256-7000 to schedule a consultation.