Is my Will still legal if I move to another state?
Each year, millions of people move to a new state. If you are among them, you may be wondering whether the estate planning documents (typically a Will, Power of Attorney, and Living Will) you signed in your former state will be valid in your new state. The good news (as qualified below) is most states do have “savings statutes” that recognize the validity of a will if it was validly executed under the law at the place of execution. That means if your will complied with the laws of the former state, the new state should accept it.
Nevertheless, even though it is likely your new state will recognize your will, it is still in your best interest to discuss your particular circumstances with an estate planning attorney. Items to consider include:
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Executor – Does the person named as executor in your will live out-of-state? If so, there may be additional complications and expenses, and in that case, you may be better suited naming an executor who resides in the new state. Moreover, some states impose restrictions on who may serve as executor, such as a requirement the executor live in the state or otherwise be a blood relative of the decedent.
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Probate – The probate process varies from state to state. For example, in Pennsylvania, the court generally takes a “hands-off” approach and allows an executor to administer estate assets without much oversight. Courts in other states (e.g., California) can be much more involved, which results in a lengthier, more expensive process. All this is to say, if you moved to a state with a more rigorous probate process, you should consider implementing probate-avoidance strategies into your estate plan (e.g., a revocable trust).
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Marital Property – Moving from a “community property state” to a “common law state” or vice versa can also create problems with your estate plan. In general, in community property states[1] spouses own all property acquired during marriage jointly (subject to certain exceptions). In common law states, each spouse normally owns only what is in his or her name; but, these states typically have rules to protect a surviving spouse from being disinherited (e.g., Pennsylvania grants a surviving spouse the right to an “elective share”). Because of the different ways spousal property is treated from state to state, it is recommended that you consult with an estate planning lawyer.
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Death Taxes – Did you move from a state with no death tax regime to one that imposes and Estate Tax, Inheritance Tax, or both? Or, do your documents include various formula clauses and trust provisions that would be unnecessary without any death tax concerns? In any event, because of the many differences among the state’s death tax regimes, it is a good idea to review the tax-planning aspects of your plan with a qualified estate planning attorney.
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Advanced Directives and Healthcare Power of Attorneys – While some states have laws explicitly accepting Advanced Directives and Healthcare Power of Attorneys that were signed in other states, others do not have any laws on the subject. In states that do not have laws accepting out-of-state advanced directives or healthcare power of attorneys, healthcare providers may be hesitant, or even outright refuse, to accept such out-of-state documents. It is always a good idea to consult with an estate planning attorney in your new state regarding the validity of these documents.
Overall, although it is fair to say that a will validly signed in one state will be recognized by another, that does not mean you should forgo consulting with an estate planning attorney. Differences in state law may create unintended consequences for your plan, and without revising your plan accordingly, your assets may not pass in the manner you intended. Therefore, it is important to consult with an estate planning attorney in your new area. We at MFDD would be happy to discuss these issues with you. Please feel free to give us a call at 610-882-9800.
[1] Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin; Alaska is an opt-in state.