Q. My wife and I spend a substantial amount of time each year living in two other states, so that we can spend time living near each of our two children and their own families. We have our California estate planning documents created some time ago, but wonder whether we should create new documents in each of the other states, as well?
A. Good question! While, technically, you do not necessarily need a separate set of estate planning documents created under each of the other state’s laws, nevertheless it might be wise to do so as to at least as to two of them, and here’s why:
The United States Constitution requires that each state give what is called “full faith and credit” to the laws of every other state in the union. This means that your estate planning documents created under California law should be honored in every other state of the union, without the need to create new documents in each of those other states. That said, however, the practical realities of dealing with California documents in other states might nevertheless create problems, especially as to your Durable Power Of Attorney (“DPOA”) and your Advance Health Care Directive.
If you both remain permanent residents of California, you should not need new wills or a new trust, yet as to your “DPOA” and your Advance Health Care Directive, it may be a different story: you might very well meet some resistance if you attempt to use your California documents in those other states. Reason: financial and healthcare institutions are used to seeing the documents commonly used in their own states and may refuse to honor out-of-state documents of which they are unfamiliar. Further, as to your Health Directive, other states may use different terms for the document, such as “durable power of attorney for health care” or “Living Will”.
Remember that the people at the bank, and the people in the hospitals, are not constitutional lawyers, and may therefore not know that they should fully honor your California documents. Therefore, I recommend that you consult an attorney in each of the other states and prepare at least a DPOA and the equivalent of a Health Care Directive, both in a form that is customarily seen and used in each of those other states.
Further, even as to your wills and trust, my recommendation is still to consult with a lawyer in each of the other states in order to make sure there are no special rules that might trip up your family in the event it became necessary to handle some of your estate affairs outside of California.
So, even though you could stand upon your constitutional rights to assert the validity of all of your California documents in the other two states, my suggestion is that, upon your next visits, you create new Health Directives and DPOA’s that would be easily recognized by financial and medical folks in those other states. When doing so, try to make them as similar as possible to your California documents, especially in terms of who is authorized to act as your agent, so as to avoid confusion in the event of need.