Out-of-State Estate Planning Documents

We frequently receive calls inquiring about whether out-of-state estate planning documents are valid in North Carolina.  The short answer is likely yes.

A typical comprehensive plan should include a will, power of attorney, healthcare power of attorney and living will.  It is also common to have a trust that is “located” in another state and relies on that state’s laws for its governance.

Estate planning documents are controlled by state law and common law.  Common laws are laws derived from judicial decisions, rather than state statutes.  The same holds true for probate and estate administration.  Therefore, it is recommended that you update your estate plan when you move from one state to another.

North Carolina has recognized the fact that people become citizens of our state without updating their estate plans.  Instead of disregarding these documents because they were not drafted under North Carolina law, statutes have been passed that allow these documents to be considered valid in North Carolina.

For wills signed in another state, if the will’s execution complied with the laws of the state where the person making the will was either physically present or where he or she lived, it will be deemed valid in North Carolina.

In order to probate the out-of-state will, additional evidence is needed such as an addendum to the application for probate and possibly an affidavit from the drafting attorney that the will complied with that state’s laws at the time it was signed.  Also note that there are provisions of the federal law that make military wills valid in all the states. Additional steps are needed to probate a military will.

The North Carolina laws for powers of attorney signed in another state, are almost identical to those pertaining to out-of-state wills.  The North Carolina laws on powers of attorney were substantially revised in 2017 and became effective January 1, 2018.  Powers of attorney signed prior to that date remain valid.  There is also a federal law that makes military powers of attorney valid in all states.

Healthcare powers of attorney and living wills are often referred to collectively as medical directives or advance directives.  Some forms of these documents combine them into one document.  A healthcare power of attorney signed in another state is valid if it appears to have been signed in accordance with the laws of that other state.

For trusts signed in another state, it may be easy to move the “location” (also know as situs) to another state and have the new state’s law apply to the trust.  However, there are many factors to be considered before changing a trust’s situs.  It is recommended that you schedule a consultation with us to review your estate plan before making any changes to your trust.

While your out-of-state documents may be legally valid in North Carolina, it is strongly advised to have your estate plan updated.  It is also important to remember that estate planning is a process to develop goals and objectives should you become incapacitated or what happens at your death.  Estate planning documents are the result of this process.  We advise our clients to review their estate plans every 3 – 5 years to keep them up to date with life changes and the modernization of our laws.  Call us today to set up an estate planning consultation.

Return

Previous: