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Your Estate Plan and Moving from State to State

07/07/2016

Estate Plan

Most of the time, according to a recent Q&A in NJ 101.5, “Is that will still valid if you move?”, the will does continue to be valid in the new state. But this is a good question, because there are exceptions and requirements.

The first step in the analysis is to look at the laws from the previous state of residence. Make certain that the will is validly executed pursuant to the statutes of the state where it was signed. The law in most states stipulates that the will must be signed by the testator, or the individual creating the will, as well as two witnesses. That’s what it will take to make the will validly executed. In most cases, if you have a will that is prepared by a local estate planning attorney and then you move out of the state, it will be valid and acceptable to the courts there and admitted into probate in the new state.

But of course, there are a few exceptions. For instance, not every state will accept what is called a “holographic will,” which is a will that’s in the handwriting of the testator but isn’t witnessed or has only one witness.

The next step in will scrutiny is based upon the probate laws of the state to which you move. In the event the will can be admitted to probate, there may be some provisions in the will that conflict with laws in the new state. These provisions would be invalid. One example of a state-specific probate law is the restrictions as to who is permitted to serve as executor. So even if your will is validly executed, the individual you designated as the executor might not be able to serve if the law of the new residence state prohibits it. There are states that have restrictions on non-family members serving as executors for those who live out-of-state.

The last step in reviewing a will when you’ve moved to another state is to have it reviewed by an estate planning attorney in the new state. Does the will comply with the new state laws? In some states, probate is a simple process that requires only that the will be executed properly. But if you move to a state where probate is expensive or takes a very long time to complete, a living trust may make more sense. And if you move to a state like California, known as a “community property” state, the laws for ownership of marital assets are very different.

Your best bet? Sit down with an estate planning attorney in the new state to make sure that the will works and also to determine if any other changes associated with your move might make it a good time to make some additional updates to your will.

Reference: NJ 101.5 (June 17, 2016) “Is that will still valid if you move?”

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