Although you likely won’t need to have an entirely new estate plan prepared for you, upon relocating to another state, you should definitely have your existing plan reviewed by an estate planning lawyer who is familiar with your new home state’s laws. Each state has its own laws governing estate planning, and those laws can differ significantly from one location to another.
Given this, you’ll want to make sure your planning documents all comply with the new state’s laws, and the terms of those documents still work as intended. Here, we’ll discuss how differing state laws can affect common planning documents and the steps you might want to take to ensure your documents are properly updated.
Last Will and Testament
The good news is, most states will accept a will that was executed properly under another state's laws. However, there could be differences in the new state’s laws that make certain provisions in your will invalid. Here are a few of the things you should pay the most attention to in your will when moving:
Your executor: Consider whether or not the executor or administrator you’ve chosen will be able to serve in that role in your new location. Every state will allow an out-of-state executor to serve, but some states have special requirements that those executors must meet, such as requiring them to post a bond before serving. Other states require non-resident executors to appoint an agent who lives within the state to accept legal documents on behalf of the estate.
Marital property: If you are married, give special consideration to how your new state treats marital property. While a common law state might treat the property you own in your name alone as yours, community property states treat all of your property as owned jointly with your spouse. If your new state treats marital property differently, you might need to draft a new will to ensure your wishes are honored.
Interested witnesses: Another important role under your will to consider when moving to a new state is an interested witness. An interested witness is someone who was a witness to your will who also receives a gift from your will. Some states allow interested witnesses to receive the gift, while other states do not allow such gifts. And still other states allow such gifts provided the witness is a family member.
Revocable Living Trust
A valid revocable living trust from one state should continue to be valid in your new state. However, you need to make certain that you transfer any new assets or property you acquire, such as your new home, to your trust, so that those assets can avoid the need to go through probate before being distributed to your heirs upon your death. There may also be laws in your new state that you may want to have reflected in your revocable living trust, possibly necessitating an amendment to your trust. A good example of this is Texas’ favorable homestead laws.
Power of Attorney
A valid power of attorney document, such as a durable power of attorney, medical power of attorney, or financial power of attorney, created in one state may be valid in your new state. However, you shouldn’t just assume it will be accepted, and you should check with a lawyer like us to make certain your document will work 100% as intended.
What’s more, in some cases, banks, financial institutions, and healthcare facilities in your new state may not accept a power of attorney document if it’s unfamiliar to them, which is another reason to have these documents reviewed by a professional. Finally, simply as a practical matter, it may be a good idea to have your power of attorney agent live in the same state you do, so keep that in mind as well.
Advance Directive / Living Will
When it comes to advance directives, such as a living will and medical power of attorney, you’ll find that most states will accept documents that were created in other states, but this isn’t guaranteed. Some states, for example, don’t even have any laws governing these matters, so healthcare professionals may be hesitant to accept out-of-state documents.
Furthermore, the provisions, forms, and language used in advance directives can vary widely between states. For example, some states combine a medical power of attorney with a living will, so that you get to name the person in charge of making your medical decisions in the event of your incapacity and spell out your specific wishes for care all in one document. Yet, in other states the documents are separate. For these reasons, you should enlist the help of a lawyer to make sure your advance directives will be honored in your new locale.
While you are reviewing your directives for your new state, you should also review them to ensure they are clear on your wishes regarding how you should be given nutrition and hydration if hospitalized. Many directives aren’t specific enough in this area, and this is exactly what led to the lengthy battle over Terry Schiavo’s life. In addition, check to see if you want to add or change any provisions to account for the current realities of COVID-19.
If you have accounts with beneficiary designations, such as 401(k)s, life insurance policies, and payable-on-death bank accounts, these should be valid no matter which state you live in. That said, you should still review these documents when you move to ensure that your address and other personal information is updated.
Keep Your Plan Current
As with other major life events, such as births, deaths, and divorce, moving to a new state is the ideal time to have your plan reviewed by a professional. With us, we’ll not only support you in creating the planning documents that are best suited for your situation and asset profile, but we also have systems and processes in place to ensure your documents stay totally updated throughout your lifetime.
Additionally, for parents of minor children, we can also help you create the legal documents for naming both short and long-term guardians, who would care for your kids in the event of your death or incapacity. This is so important to us that we’ve developed a comprehensive system called the Kids Protection Plan® that guides you step-by-step through the process of creating the legal documents naming these guardians.
This article is a service of Davidek Law Firm, PLLC. We don’t just draft documents; we ensure that families and business owners make informed and empowered decisions about life and death, for themselves and the people they love.