Mobility of Estate Plan Documents

Many clients ask if they must re-do their estate plan when they move to a different state.  The answer is generally “no”.  A Will made in New Jersey or New York or Florida is likely going to be “valid” in almost any other state to which one relocates. Several states formerly required three witnesses for a Will to be valid, but it appears that those laws have been changed to bring them in line with the vast majority of state that require only two witnesses. (Vermont may have been the last state to change its law from three to two witnesses, and that was done in 2005). Thus, if a written Will is signed by you and is attested and signed by two witnesses, it should be valid in any of the fifty states.

Be aware that “valid” is important, but it is a low standard. Each state has a variety of laws that make Wills not only valid, but efficient under their legal system. One such nod to efficiency is the concept of a “self-proving affidavit”. When you die, if the Will has to be reviewed by a Judge, the Judge needs proof of the Will’s validity. Part of that proof is provided by the witnesses who saw you sign the Will. If they signed the Will and also signed a “self-proving affidavit” attached to the Will, then the affidavit is all the Judge will require. If the Will did not include a proper affidavit, then the witnesses may have to be tracked and brought to court (an inconvenience for all, and possibly a large expense).

Many states have recently modified their laws to acknowledge that mobility is an important consideration. This type of reciprocity makes it very much easier to move from state-to-state. If you have an idea to what state your company may eventually move you, your estate planning lawyer can check that state’s reciprocity law and can adapt the terms of your Will to accommodate the anticipated relocation.

Your estate planning documents should, at minimum, also include a Durable Power of Attorney and advance medical directives. Reciprocity may apply to these additional estate planning documents. Most states grant reciprocity to legally valid advance directives that were created when you were a resident of one state but later relocate to another state. For instance, if you create a Medical Power of Attorney and a Directive to Physicians, then later leave State A, your new state’s laws may recognize the validity of the State A documents under the laws of your new state.

Most importantly,  you should not wait to make an estate plan just because you may relocate in a few years. You will protect your family and your assets, could save estate taxes, and you will gain peace-of-mind by carefully crafting an estate plan with a skilled lawyer. If minor adjustments need to be crafted after you relocate, it is just part of the cost of relocating.

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