One common method of estate planning is a will. A will distributes your estate and contains certain instructions for your beneficiaries. Individuals often question whether their will will be valid if they move to another state. This is often a concern expressed by retirees who plan to move to another state to be near family or enjoy warmer weather. They had the forethought to draft a will, but now the question turns to whether that carefully planned legal document will be considered valid in another state.
Posted on October 29, 2016
State law governs the distribution of an individual’s estate. Every state has its own laws regarding the contents and execution of a will, and these laws vary. Generally, a will that is valid in one state will be valid in another state. However, there are several issues regarding the drafting of a will that vary between states. For example, some states do not accept holographic wills, which are wills written entirely in the handwriting of the person creating the will (i.e. the testator). Most states do not accept oral wills, but some states accept oral wills from soldiers on the battlefield. State law also differs on the division of marital property, which can largely affect an individual’s will.
One important difference in state laws regards witnesses. All states require that the testator sign the will in front of two witnesses. However, states differ on whether the witness must sign in the sight of the testator or whether the will must be notarized too. Additionally, some state laws place restrictions on witnesses who are also beneficiaries of the will. These witness/beneficiaries are called “interested witnesses.” Some states require that the interested witness’ gift is reduced or eliminated to eliminate any potential conflicts of interest.
Even if your will is found valid in another state, if it has certain provisions that are not valid under your new state’s laws, those provisions may be determined void. This could eliminate vital portions of your will. Additionally, wills often reference to state laws. If you move, you will need to edit your will to remove references to your old state law.
When individuals obtain a will, they will often also draft a durable power of attorney, living will, advanced directive, or healthcare proxy at the same time. These documents appoint a healthcare agent or proxy to act on your behalf regarding medical decisions when you become unable to make those decisions for yourself. Some states have laws that provide explicit instructions on these legal documents, while other states stay silent on the subject. Regardless, it is best to use the form from your state of residence as each state’s forms differ greatly. Hospitals and insurance companies are more comfortable accepting documents with which they are familiar, even if the documents provide for essentially the same thing.
One issue arises when individuals own property in another state. Real property must be probated in the state in which it is located. This is called an ancillary probate. Therefore, if you created your will in New York and you live in New York, but you own real estate in Delaware, you must have your will probated in both New York and Delaware.
Another estate planning option is a trust. A trust allows your beneficiaries to avoid the time and expensive of the probate process that is required for a will. You can put assets into the trust before your death and appoint yourself as the trustee. This allows you to do what you want with your assets until you die, including selling or giving away assets. After your death, the successor trustee will take over as the manager of the trust. One major benefit of a trust is that it is valid if you move to another state. A trust is a great alternative to a will, especially because it avoids the hassle of editing or rewriting your will if you move to another state.
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