When changing residences from one state to another, your will must be reviewed to make sure that it conforms with the state laws of the new state to which you are moving. As the requirements for creating a valid will vary from state to state. A will that is properly executed with all the required provisions in your former state will always 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 state's estate planning laws.
Will My Original Will Have Same Effect In Another State?
A properly executed will that determines how your property will be distributed upon your death will always be valid within every state and the effect of distribution of the property will remain the same. The distribution of the property 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 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, provisions of the will that do not comply with the laws of the state could result in a higher probate cost. Also some "terms" that have one meaning in one state could have a different meaning in another state and this could result in property being inherited in
What Are Some Common Will Requirements That Differ From State To State?
General areas to be identified and 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.
- Signatures: Different states will specify the location in the will 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 proving that a will is valid in any given state. It 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 Florida, the testator and the witnesses must all sign the affidavit. Thus, a Florida court may not accept a Connecticut self-proving affidavit because the testator did not sign the affidavit.
- Holographic wills: These types of wills are un-witnessed wills that are hand-written by the testator. They are not valid in most states and generally should be avoided.
- Conflicts of law: The new state will have 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, 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. Generally, having assets in the new state will increase your change 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 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 redraft your will to achieve your intended result.
Will My Original Will Be Valid In Another Country?
If you move to another country, the "Full Faith and Credit Clause" of the Constitution would not protect the interest you have in the Will because Wills are protected by US laws and other countries do not have to honor it. However, if the United States has treaties and agreements with other countries that will allow Will's made in the US to be honored and recognized in those countries, then a properly executed Will would have the same effect in the other country as well. If the Will was created in the foreign country may also be honored in the US if there is a treaty between US and the foreign country honoring the validity of the Will.
Do I Need An Attorney To Help Me Rewrite My Will To Comply With the New State's Laws?
Whenever you move to a new state, you should have a new will prepared in accordance with the laws of that state, or at least make sure that your existing will conforms to your new state's laws. An experienced estate planning attorney in your new state can look at your existing will and determine if any changes must be made to conform to your new state's laws.