Modern Americans are more transient than ever, often residing in various states over time. As a result, new residents of North and South Carolina often ask estate planning and probate attorneys if a Will that was prepared in another state will be sufficient to accomplish their goals in their new home state. The short answer is: possibly, however it is highly recommended that an attorney licensed in North or South Carolina review prior documents to advise on if updates are needed for the documents to comply with current state laws.
Consideration: Is the Will VALID?
All states have their own laws which dictate what makes a Will valid. Most require Wills to be: (1) in writing, (2) signed by the testator (the person making the Will), and (3) that the testator be of sound mind and not a minor. Many states also require that either one or two witnesses sign the Will, verifying that they actually observed the testator's signing in real time.
Although these requirements appear simple, the courts are required to closely analyze all Wills for compliance. Even small variances, such as dates for the witness signatures not mirroring that date of the testator's signature, can cause a Will to be rejected. Similarly, the requirement that a Will be “in writing” does not simply allow any type of writing. For example, handwritten wills have additional requirements which must be met in order for the court to consider the Will to be valid.
Proving a Will's validity in court can prolong the probate process and incur additional expenses because evidence would have to be produced to show that the Will is authentic before the court will even accept it. Having a Will and other estate planning documents reviewed and updated by locally licensed estate planning attorneys can ensure that a testator's wishes are followed and not disallowed due to technical requirements.
Consideration: Is the Will SELF-PROVING?
If a Will is “self-proving”, an executor or personal representative would not have the burden of proving to the court that a Will is valid. Having the testator and witness signatures on a will notarized will often suffice in qualifying a Will as “self-proving”, however certain “acknowledgements” by the witnesses and notary are required in order for the Will to be considered self-proving.
Consideration: Was the Will VALID in the ORIGINAL State?
Although the requirements vary depending on which state the Will was prepared in, generally, if the Will was considered valid under the laws of the prior state, then it will likely be recognized as valid in North Carolina or South Carolina. This also generally applies to self-proving Wills; if the Will is considered self-proving under the laws of the prior state, then it will likely be recognized as self-proving in North Carolina or South Carolina.
Consideration: Expense of NOT Updating Out of State Documents
Although it is possible for an out-of-state Will to be valid and self-proving under local law, there are additional steps required before a North Carolina or South Carolina court would probate an out-of-state Will at death. The steps may not be as cumbersome as proving the authenticity of the Will but would likely incur additional fees (such as court or legal fees) and time, often delaying executors or personal representatives from obtaining the authority to manage estate funds and assets, and ultimately delaying an heir's receipt of their inheritance. It is therefore highly recommended to have a North Carolina or South Carolina Will in place to avoid such additional steps and make the process as streamlined as possible for the personal representative and heirs.
Example:
John lived in South Carolina for many years and had his Will prepared there by an attorney when he was 42. When John signed his Will, he signed it in the presence of two witnesses and all signatures were notarized. John has since moved to North Carolina and wants to know whether his South Carolina Will is valid here. First, he would look to the laws regarding Will validity in South Carolina, which state that a Will is valid if it is in writing, signed by the testator who is of sound mind and over the age of 18, and signed by two witnesses who witness the testator's signing. Second, he would look to the laws regarding self-proving Wills in South Carolina, which state that a Will is self-proving if it is acknowledged by both the testator and at least one witness in the presence of a notary. Because John's Will meets the South Carolina requirements for a valid, self-proving Will, it will be recognized as a valid, self-proving Will in North Carolina (even though the North Carolina requirements are different).
The considerations discussed above are not intended to be completely comprehensive. There are many factors that go into preparing Wills and other estate planning documents and, to achieve your estate planning goals and intended outcomes, it is best to consult with an attorney. If you moved to North Carolina or South Carolina and have questions about your out-of-state documents, contact our office to schedule a meeting with one of our attorneys. We welcome newcomers to the Carolinas and look forward to helping our clients achieve the best possible outcomes for their futures.
