If We Move to a New State Will Our Estate Planning Documents Be Valid?
Authored by: Renee Q. Boyd – Associate Attorney – Elville and Associates, P.C.
Oftentimes when I meet with clients to discuss their estate planning needs or to review their documents, I am asked “If we move to another state, will our documents be valid in the new state?”.
Generally, the answer is yes. It is likely that you won’t need to execute new documents when you move, however, it is a good idea to have the documents reviewed when you move to ensure they conform with the state laws of the new state to which you have moved. States have different laws that govern estate planning and these state-specific estate planning laws can have an impact on your documents. Therefore, we recommend you have your documents reviewed to determine if any updates are required.
Last Will and Testament
Every state has different requirements for the execution of wills but the good news is that most states will accept out-of-state wills if they were properly executed under the laws of the state when they were created. The probate courts of most states will recognize a will executed in a different state, as long as it was validly executed. That said, however, it is quite possible that some rules in the new state can differ from those in the old state.
For instance, state laws can vary on the number of witness signatures needed on a will, and whether or not those signatures need to be notarized. Another issue is the “proving” of the will, which is a sworn statement signed by the maker of the will and the witnesses that attests to the validity of the will. In some states, probate courts wlll accept the sworn statement as evidence that the will is valid. However, not all states allow for self-proving wills. States also differ regarding which types of wills are valid. Some states will allow self-written wills but have state-specific rules about how the wills must be written.
Another consideration involves the Personal Representative or Executor who is named to administer the will. While most states allow out-of-state personal representatives to serve, they may have requirements for them to be able to serve, such as posting a bond. Some states put limitations on who can serve as the Personal Representative, for instance only someone related to you by blood or marriage, and many states require that an out-of-state Personal Representative appoint an in-state agent to accept legal documents for the estate.
Revocable Living Trusts
Trusts are governed by contract law, so a revocable living trust, because it is considered to be a contract, is afforded respect by the Full Faith and Credit Clause of the U.S. Constitution. This makes the revocable living trust portable which means you can move to another state and it should be valid there. The main consideration with a revocable living trust is that it is funded with the assets you want to pass to your beneficiary(s). When you move to the new state, if you purchase a home there, you will want to make sure to assign the new property to your revocable living trust and that the deed to the property is drafted accordingly.
Advance Medical Directives
Advance medical directives, also known as living wills or health care proxies, are usually valid across state lines. Some states have laws that require health care providers to honor legal documents regarding health care wishes if they were executed out of state, however, not all states have provisions that address validity of documents executed out-of-state. This makes it difficult to be sure if the out-of-state advance directive will be honored in the new state. Because each state has its own provisions and forms, it is recommended that you have an attorney in the new state review the advance directive to ensure its validity.
Powers of Attorney
Similar to advance directives, each state has its own laws that govern granting someone Power of Attorney. The various states also have their own forms. Generally, a power of attorney that is valid when and where you sign it will remain valid even if you move to another state. Although you may not need a new power of attorney just because you have moved, it is a good idea to have it reviewed by an attorney in the new state to make sure that the nuances of the new state’s laws are addressed.
Summary
In summary, your estate planning documents should be valid in the new state if they were properly executed according to all the required provisions of your former state. But because the laws of each state are different, it is advisable that you have your documents reviewed, and possibly updated, by an attorney who is familiar with the new state’s estate planning laws. If you intend to permanently remain in the new state, we recommend that you work with the attorney there to prepare new advance medical directive and power of attorney documents. Also, if a revocable living trust is part of your estate plan, and particularly if you purchase real property in the new state, we recommend having the situs and state law updated in the trust for state income tax purposes.
