The most commonly asked estate planning questions I am asked revolve around the individual’s estate planning documents from their previous state of residence.
You do not necessarily have to get brand new estate planning documents because you have changed states. However, it is always recommended that you consult with a local estate planning attorney who can review your out-of-state documents and advise you if the documents are valid and reliable in South Carolina.
The general rule is, if an estate planning document would have been legal in the state it was drafted in, the document is legal in South Carolina.
However, certain documents, though legal in South Carolina, are not always usable. This issue arises because every state has its own requirements for estate planning documents. When you move to a new state, you do not know if the requirements of the new state are like your previous state, less restrictive, or more restrictive.
For example, South Carolina requires a durable power of attorney to be recorded before the document can be used by the named power of attorney. To record documents in South Carolina, the documents must have two witness signatures and a notary stamp.
Many states require only that their durable powers of attorney have a notary signature or a notary signature and only one witnesses.
Durable powers of attorney that do not meet the South Carolina requirements, meaning they do not have two witnesses and a notary signature, are unable to be used in South Carolina. Most financial institutions and business will accept a durable power of attorney only if the documents have been recorded.
If the documents cannot be recorded because it does not meet the requirements, then the document is unusable. An unusable power of attorney is never a situation you or your agents want to be in.
The same issues can apply to any estate planning documents from last will and testaments and trusts, to powers of attorney and healthcare directives.
The best rule to follow is when you move to a new state, have your existing estate planning documents reviewed by a qualified estate planning attorney.
The attorney can conduct a legal analysis of your documents and determine if your documents meet South Carolina requirements.
Rebekah N. Freeman is an associate attorney with Elder Law & Estate Planning Center