A common question asked by clients is whether or not their estate planning documents, (wills, trusts, POA’s, AMD’s, etc.) will still be valid if they moved to another state. While this question has many caveats, a will is generally honored in other jurisdictions, as long as it was properly written according to the rules of the original state.
However, due to differing state laws and probate courts, certain parts in the will may become invalid or contended. For instance, if you moved and then got married, the new state may have community property law instead of common law that would apply, and the result of probate would likely change your original intent completely. Depending on the state and divorce laws, some states actually revoke your will automatically when you change your marital status.
In addition, out of state non-compliance wills could result in higher court costs, and certain terms and situations will be decided based on the new state’s laws, which could further alter the final distribution and intent of the will. It’s therefore recommended to update your estate plan whenever you have a major life event. (Marriage, family death, moving, health change, distribution of wealth, etc.).
The following are some of the potential points of contention when moving to another state:
1. Legal Requirements
Technical requirements can be different. Many states differ on the specific requirements for the location or number of signatures, notarizing, or how the will needs to be written. Some states also allow handwritten or “holographic” wills, while other states don’t. While the general rule is that if it’s valid in the original state it will be honored, a couple states, like Florida won’t accept a holographic will at all. If a term needs to be properly interpreted, it will be interpreted under the laws of the new state. It’s important to consult an attorney to get an answer for your specific situation.
2. Self-Proving Affidavit
Another issue to recognize is the “proving” of the will. All states require certain rules to prove the will is valid and is being properly executed. If the will is not “self-proving” under the previous state’s law, (usually done by an affidavit, notary or other sworn statement attached to the will), then when it comes time to probate the out-of-state will, the witnesses will need to give testimony in the new state. If they’re deceased, or far away, this could be extremely difficult. And like the technical requirements, states have different requirements for the affidavit. A good way to avoid this is by creating a new will in the new state, and making it self-proving under the laws of the new state.
3. Out of State Executors/Representatives
Many people have their friend or longstanding attorney as the executor of their will. If you were to move and they don’t move with you, this could become a burden for your executor and logistically impractical. Some states even prohibit out-of-state representatives. While Virginia doesn’t directly prohibit them, they do require the personal representative to have a valid mailing address in-state. Some states, like Florida, require the executor to be a close relative or a Florida resident. So, if you were to retire and move to Florida, and your chosen executor doesn’t meet the criteria, the probate courts would appoint a representative for you.
4. Taxes and Fees
State inheritance taxes and estate taxes can vary greatly from state to state. Probate courts also generally have additional fees for out-of-state wills, and can have additional processes required. Part of this also depends on where your property lies. If you are buying a house in another state, and plan on moving, you generally should update of your will would need to be updated.
5. Probate Laws
The rules on disinheriting, omitted child, lapse statute, and other complicated issues can be very different between states. The new state may be a community property state, which may change your marital property ownership. These probate laws would supersede your will, and can make the wording or clauses in your will invalid, which can then throw off all other distributions. It’s important to consult an attorney like Maddoxlawpc.com, in order to make sure you aren’t
6. General Prudence For Additional Documents
Generally, a change in location also means a change in property, which would likely correlate to a change in asset distribution. You may also need to update your POA, AMD, or other supporting documents when you move, as some state laws require special wording, or differences in TOD’s, POA’s and AMD’s.
From potentially finding a new representative, to updating the content, it is recommended you have an attorney in your new State review and update your will and estate plan when moving to another State.