When changing residences from one state to another, it can have effects on your will document. When you move, it’s a good idea to have your will reviewed to make sure that it conforms with the state laws of the new state to which you are moving. This is because the requirements for creating a valid will vary from state to state.
Generally, a will that is properly executed according to all the required provisions in your former state should be regarded as a valid will by the laws of your new state. However, as the laws of each state are different, if you move to another state it is advised to have the will reviewed by a lawyer who is familiar with the new area’s estate planning laws.
A properly executed will determines how your property will be distributed upon your death. Such a will should be valid within every state and the effect of distribution of the property will remain the same. The distribution of the property through a will relies on the intent of the will maker, and the courts use that during the probate process to distribute the assets rather than laws of the state. The laws of the state typically only matter when a person dies without a will or intestate.
However, if you do not have your will properly reviewed once you move to a different state, parts of the will that do not comply with the laws of the state could result in higher probate costs. Also, some terms or definitions that have one meaning in one state could have a different meaning in another state; this could result in property being distributed in a different manner.
General areas to be addressed regarding whether your will is valid in a new state include:
- Witnesses: Each state requires that a will be signed by a specific number of witnesses (usually two, but it can vary by region).
- Signatures: Different states will specify the location in the will document of the signatures of the testator (i.e. person creating the will) and the witnesses.
- Self-Proving Affidavit: A self-proving affidavit is a written declaration made under oath before a notary public or other authorized officer. It serves to prove that a will is valid in any given state. The affidavit should be attached to your will if it is legally recognized by the new state. The form of this affidavit is important. For example, in Connecticut, only the witnesses need to sign the affidavit in order for the will to be valid. However, in the state of Florida, the testator and the witnesses must all sign the affidavit. Thus, a Florida court may not accept a Connecticut self-proving affidavit if it does not conform to Florida requirements.
- Holographic Wills: These types of wills are not witnessed and are hand-written by the testator. They are not valid under most state laws, and generally should be avoided.
- Conflicts of Law: The new state may have very different probate processes you have to follow in order to prove your will. Thus, even though your will may be valid in your previous state of residence, you may have to comply with the new state’s laws to establish your will there.
- Location of Assets: Another big factor is whether you have assets or property located in the new state where you are moving to. Generally, having assets in the new state will increase your chance of proving the validity of your will in the new state.
- Classification of Property: Occasionally complications arise if your new state has a different classification of marital property than your previous one. For example, if your will was executed in a state that does not have a community property system and you move to one of the 9 community property states, you may have to change or redraft your will to achieve your intended result.
If you move to another country outside of the U.S., the “Full Faith and Credit Clause” of the Constitution would not protect the interest you have in the will. This is because wills are protected by U.S. laws and other countries may not need to honor it.
However, if the U.S. has agreements with other countries that allow wills made in the U.S. to be honored and recognized in those countries, then a properly executed will would have the same effect in the other country as well.
Whenever you move to a new state, you should have a new will prepared in accordance with the laws of that state. Alternatively, you should have it reviewed at least make sure that your existing will conforms to your new state’s laws.
An experienced wills, trusts, and estates attorney in your new state can examine your existing will and determine if any changes must be made to conform to your new state’s laws.