The most common estate planning question I am asked revolves around the individual’s estate planning documents after a move from another state to South Carolina.
You do not necessarily have to get brand new estate planning documents just because you have moved to a different state. 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 was legal in the state in which it was drafted, that document is legal in South Carolina.
However, certain documents, though legal in South Carolina, are not always reliable. This issue arises because every state has its own requirements for estate planning documents. When you move to a new state, you might 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 their durable powers of attorney to have only a notary signature or a notary signature and only one witness.
Durable powers of attorney that do not meet the South Carolina requirements, meaning they do not have two witnesses and a notary signature, are unusable in South Carolina.
Most financial institutions and businesses will accept only a durable power of attorney 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 testament and trusts, to powers of attorneys and healthcare directives.
The best rule to follow when you move to a new state is to 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.
To learn more about elder law and estate planning in South Carolina, sign up for our workshop at St. Andrews Hall on Feb. 21 or visit hiltonheadelderlaw.com.
Rebekah N. Freeman is an associate attorney with Elder Law & Estate Planning Center.