Moving to a new state is a fact of life for many people. Whether relocating for retirement, for work, or to be closer to family, our readers often find themselves in a new state and wonder what effect that has on their Will. This article addresses how a state-to-state move affects the validity and effectiveness of a Will and other estate documents.
How a Move Might Affect Your Will
The legal question in this case is whether the Will is “ambulatory;” that is to say whether it is legally valid as it walks from one state to the next. That question depends on two sets of things: first, the formalities that the new state requires for Wills to be valid and effective; and, second, how one’s current Will is written and signed.
Each state has requirements a Will must satisfy to be valid. Generally, a document must be in writing, dated, signed, and intending to be a Will. To authenticate a signature, states usually require that other people witness the signature. (Virginia wants two people to witness a Will.) Further, to certify the identity of both the person who wrote the Will (the Testator) and the witnesses, some states require that the Will also be notarized. A general standard JGB uses is to always have two witnesses, a notary, and a clause in which the witnesses swear under penalty of perjury that all was in order at the signing. A Will that does not meet a state’s requirements for witnesses and notary will not be accepted (Probated) by the court after death.
In addition to the legal requirements for validity, each state’s law raises practical concerns that necessitate adding certain provisions to a Will so its administration can be easier. Each state has its own probate code, and courts are accustomed to seeing that code referenced in Wills. Its absence can slow the probate process.
Some states require an Executor (also called a Personal Representative) to live in the state in which a Will is Probated. If your Will lists a family member from out of that state, the Will may be valid, but the named Executor cannot serve. In Virginia, an out-of-state person can serve as a Personal Representative, but they must put up a bond (even if the Will otherwise waives the bond) and appoint a Virginia attorney as agent so that any creditors have a local office they can serve with legal summons, if needed. Here at JGB, we often serve as Personal Representatives in cases where the heirs live across the country and ask us to step in and administer a local estate for them.
Once you know the rules in your new state, the next step is to examine the old Will to see how it matches up with the new requirements. For example, your Will might have only one witness instead of two or could lack a notary. Worse, some states allow things that would make a Will invalid elsewhere. In Virginia, for instance, a spouse can be a valid witness on the other spouse’s Will. Such a Will, while valid in Virginia, would be invalid in most other states. Also, Virginia allows a Will to be Probated without a notary, BUT then the witnesses must show up and testify when the Will is probated, which becomes a serious concern for old Wills. This situation came up recently in two cases of mine, and the families chose to proceed as if there were no Will rather than search out witnesses from twenty or thirty years ago in far-off states who worked for defunct law firms.
How a Move Might Affect Powers of Attorney and Medical Documents
Powers of Attorney (POAs) have similar problems as Wills. We have written elsewhere about the pros and cons of POAs. In short, the cons are thus: 1) POAs can be refused, 2) POAs are refused more often the older they get, and 3) some states have specific statutory Power of Attorney forms that other states may not follow.
Medical Powers of Attorney are relatively new (from the 1990s as opposed to 1540), so there is much less case law on point. The HIPAA provisions are based on Federal Law and so will walk from state to state. Many states have provisions that expressly allow out-of-state medical directives. You will want to review your documents with your new doctor in your new state to make sure they understand your instructions and can follow them.
Living Trusts are drafted to have a home state, called a situs. The trust is governed by the law of its home state but is valid and enforceable across all fifty states.
I Just Moved, What Do I Do?
If you are a JGB client who has moved out of state, call us. We will either be able to help you directly or refer you to a local attorney for matters outside our jurisdiction.
Moving is a challenging process for many reasons. Don’t forget to make sure your legal documents still work in your new state. When in doubt, review your documents with your attorney. Whether or not you move, ideally your plan is reviewed annually and really should be reviewed at least every five years.