This is one of the most frequently asked questions when someone has estate planning documents that were prepared in a different state but has relocated to the wonderful Palmetto State. What’s the answer? Well … it depends!
Typically, while most estate planning documents that were legally prepared in one state might be recognized by other states that you relocate to, you should always have your current estate plan reviewed by a qualified estate planning attorney in the state that you moved to.
Why? Because, though the general rule is that if an estate planning document was legal in the state where it was created then it is legal in your new home state, that doesn’t mean that all of the documents may be useable and/or reliable.
The reason why certain documents might not be usable in another state is simply because all states have their own specific laws and requirements. For example, South Carolina requires that a Durable Power of Attorney (DPOA) be recorded before an agent may use the document to act on your behalf.
In order to record documents in this state, the document must have at least two witness signatures. One of the witnesses may be a notary. Without at least two witness signatures, the DPOA cannot be recorded.
What’s the result? You and/or your designated agent may find yourselves in a bind during an urgent time of need because your agent will not be able to act on your behalf. Having an unusable power of attorney is never a situation that you or your agents want to be in.
There are many states that require a DPOA to only have one witness signature (or just a notary signature and stamp). Similarly, some states might not require a DPOA to be recorded. This varies from state to state. Keep in mind that these same issues may apply across the board for other documents that you may have, such as health care powers of attorney, trusts, last will and testaments, etc.
In addition, there are other things to consider in determining whether your current estate plan still meets your goals. For example, when is the last time you reviewed your documents? Maybe it’s been years and you don’t even recall who you named as agents, or who you planned to devise part of your estate to.
It may also be that a person that you named as an agent or proposed guardian of your children, etc. has predeceased you. Do your documents plan for a backup in certain situations?
Remember that estate planning is important, and if your current documents aren’t usable then it defeats the purpose of the goal that you intended to meet. The best rule to follow is when you move to a new state, take time to have your current estate planning documents reviewed by a qualified estate planning attorney. The attorney can review your plan and documents to determine their usability and conformity with that state’s requirements.
Don’t wait for a crisis to determine if your estate planning documents are reliable. Stay proactive and have your documents reviewed. Plan for tomorrow, today!
Jada L. Gaines is an associate attorney with Elder Law & Estate Planning Center in Bluffton. hiltonheadelderlaw.com
