Generally speaking there are not usually specific rules dictating where a will must be made. However, it is usually best to draft and execute your will in your state of legal residence. Choosing your state of residence as the location for making and executing your will can help avoid some of the various legal issues associated with will documents and hopefully avoid a will contest in the future.
Your will should include your state of legal residence and be drafted and executed according to that state’s laws. If you live in more than one state during the year or live overseas for work or military service, you should use the state in which you have the most connections. Those connections include:
- Voter registration
- Vehicle registration
- Ownership of valuable personal property particularly property with title documents, such as a house
- Business interests
It is important to know the applicable state laws when making a will because they affect various aspects of property distribution and probate. For example, state laws affect:
- Rules regarding marital and community property
- Options for managing property left to children
- Specific regarding the probate process
- Whether the estate is subject to state inheritance or estate tax
Regardless of the state where the will is made, the document will need to meet the basic requirements for drafting a valid will. These requirements usually include:
- The testator (the person making the will) had the required mental capacity or “testamentary capacity” to make the will
- The will includes a statement that the document is, in fact, your will
- The will appoints an executor who will handle the administration of the will once it is executed
- The will has been attested to, or witnessed and signed by at least two disinterested witnesses
- The will has been signed and dated by the testator
- The document instructs how the testator’s property will be distributed after their death
Each state has its own specific laws regarding wills, but most will include the basic requirements listed above. Some of the differences between states might involved the following:
- Signatures: states might have different laws regarding where in the document the signatures must appear. Most of the time a will must be signed at the end.
- Witnesses: most states require witnesses, but often differ as to how many are required. Most require two, but it can vary.
- Self proving affidavit: A self-proving affidavit is a written declaration, made under oath in the presence of a notary public or other authorized individual, that proves the will is the last will and testament of the testator. States might have different forms or different requirements for the self-proving affidavit. For example, some states require the testator and witnesses to sign the affidavit; other states only require signatures from the witnesses.
Do I Have to Make a New Will When Moving From One State to Another?
In most cases a will that is valid in one state will be recognized in another state. Therefore, if you make a will that conforms to all of the requirements of the state where you live, but then move to a new state, it generally will not be necessary to make a new will simply because your state of residence has changed.
However, there are some situations where it might be a good idea to take another look at your will and the laws in your current state and then draft a new will. Some states do not recognize certains kinds of wills, and if your will is one of those types there might be complications when the will enters probate.
For example, not all states recognize the following types of wills:
- Holographic wills: Holographic wills are wills that are hand-written and signed by the testator, but are not witnessed.
- Handwritten wills that are witnessed: These are wills that are handwritten by the testator and signed, or attested to, by witnesses. These are more likely to be considered valid everywhere than true holographic wills, but some states still do not recognize them.
- Oral wills: Very few states recognize oral wills. The states that do usually include very specific requirements for those wills to be considered valid. For example, the person is speaking on their deathbed and giving instructions for how they want their estate distributed.
If you are concerned with your will being valid in a state other than the one you live in now, the best thing to do is make sure your will is attested to by at least two disinterested witnesses. Avoid handwritten or oral wills when possible.
What if Only Part of My Will is Valid in the State I Move To?
A more common issue arises when a will is generally valid in both states, but there are a few provisions that will be handled differently in the new state based on that state’s laws. Parts of the will that would not have created legal questions in the state where it was drafted might cause complications in the new state. In that situation the probate court in the new state might elect to validate the whole will, but strike or void select provisions.
For example, in the case of divorce or remarriage, the law might be quite different from one state to the next. If the testator has divorced since the will was made, the new state will deal with any provisions mentioning a spouse according to its laws. The same is true if a spouse is left out of a will. While most states have laws dealing with disinheriting a spouse, it will be the current state’s laws that control it in that scenario.
This is also the case if minor children are not taken care of via the will. Not all states treat disinheriting children the same way. The exact support requirements may differ and in that case the new state’s laws will determine how any attempt to disinherit a child will be handled.
Another example where state laws might differ applies to the witness or attestation requirement. Some states allow “interested” witnesses to attest to and sign the will. An interested witness is one who stands to benefit from the will. In other words, they are a beneficiary. Other states require that any witnesses to the will be “disinterested” or not beneficiaries of the estate. If your will was signed by interested witnesses and you moved to a state that requires witnesses to be disinterested, it might be in your interest to execute the will again with different witnesses.
Do I Need a Lawyer For Help With a Will Document?
You should consult with an will lawyer when you are making your will. Drafting a will requires some knowledge of the state law applicable to wills. It is also important to be thorough and consider your possible future circumstances. If you move to a new state you can reach out to a local will lawyer to determine whether your will is more likely to be challenged or if provisions might be void due to any different laws.
An experienced attorney can also represent your estate and your interests if there is a challenge or if there are any questions that arise during the probate process.