Where to Make a Will?

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 How Do I Know Where to Make a Will?

There are no specific rules, laws, or regulations establishing where you must make your will. For various reasons, it is usually best to draft and execute your will in your state of legal residence. This will help ward off some of the various legal problems associated with wills and hopefully avoid a will contest in the future.

Your will should be drafted and executed according to the laws of your home state. If you live in more than one state during the year or live overseas for work or military service, you should indicate directly in your will that the will should be interpreted according to the state in which you have the most connections. Those connections include:

  • The state where you are registered to vote.
  • The state where your cars, trucks, boats, etc. are titled .
  • The state where your real estate is located, especially the location of your home.
  • The state where the bulk of your personal property sits.
  • The state where any of your business interests lie.

Knowing which is the proper state for adjudicating your final estate is important. You need to know the particular state laws when making a will because they affect various aspects of property distribution and probate. For example, state laws affect:

  • Options for managing property left to children.
  • Rules regarding marital and community property.
  • Specifics regarding the probate process (the court process for adjudicating a will)
  • Whether the estate is subject to state inheritance or estate tax, some states impose an expensive estate tax, and some impose no estate tax at all. You will want to consider this when drafting your will.

Making a Will

Regardless of the state where the will is made, the document must 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 document instructs how the testator’s property will be distributed after their death
  • The will appoints an executor who will handle the administration of the will once it is executed
  • The will has been signed and dated by the testator
  • The will has been witnessed and signed by at least two disinterested witnesses (“disinterested witness” means a person who will not receive anything from the will)

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 involve the following:

  • Signatures: states 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 in 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 have different forms or different requirements for the self-proving affidavit. These can be very helpful if there is any question later about whether the will is valid.

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. 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. Some states do not recognize certain 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 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, a state might accept a will made at the time the person is speaking on their deathbed and giving instructions for how they want their estate distributed.

What If Only Part of My Will is Valid in the State I Move To?

A relatively common problem 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 issues or 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 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’s will mentions gifts to their spouse, and they have divorced since the will was made, the new state will deal with any sections of the will which mention a spouse according to its laws.

The same complication arises 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 will determine how that issue will be resolved.

This is also the case if minor children are not provided for in the will. States take different approaches to disinheriting children. Support requirements may differ from state to state; 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 can differ applies to the witness or attestation requirement. Some states allow “interested” witnesses to attest to and sign the will. (An interested witness 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 interested witnesses signed your will and you moved to a state that requires witnesses to be disinterested, it will be in your interest to execute the will again with different witnesses.

Do I Need a Lawyer For Help With a Will?

You should consult with a local will lawyer when you are making your will. Drafting a will requires knowledge of the state law applicable to wills and estates. When writing a will, it is important to make sure that it contains all the information needed to make sure your final wishes will be recognized and carried out.

If you move to a new state, you can reach out to a local will lawyer there to determine whether your will is more likely to be challenged or if provisions might be void due to different laws.

An attorney can provide assistance and representation for enforcing your wishes should any conflicts or disputes arise, such as will contests (when someone challenges the validity of the entire will or one or more of its provisions).

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