Do I Need to Update My Will If I Move Out-of-State?

 In Estate Planning

A house moving checklist on a table, surrounded by labels, packaging tape roller, scissors, red marker pen, a ball of string and a sealed box. Some of the checkboxes have been ticked in red.

Did you know that six of the 13 fastest growing cities in the nation are in Texas – and when you move, you need the best estate planning in Frisco? If you are used to fighting rush hour traffic during your work commute, you might not be surprised by that statistic; the growth DFW is experiencing is just incredible. Chances are, either you are new to Texas yourself, or you have a neighbor, friend or family member who has just relocated here. We serve clients every day who have come from all over the country and beyond, and some common questions we receive have to do with whether estate planning documents need to be updated when moving from state to state – specifically “Do I need to update my Will?” You may have been wondering about this as well; here are some things you’ll want to know.

 

To find out if your out-of-state documents are still valid, you need to know that a Will properly drafted and executed in one state will be recognized by another, but that doesn’t mean you’re home free. Your Will must be handled by a probate lawyer in the state in which you live when you pass away. Your Executor will have to prove to the Court that your Will is valid in order to be probated, and because there are varying requirements for proving a Will is valid, there may be complications that make probate more costly and burdensome. The two main issues here have to do with Witnesses, and the Self-Proving Affidavit.

You need two witnesses to sign your Will

While every state requires that your Will is signed before at least two witnesses (Florida requires three), not all agree on the accompanying details, such as: whether the witnesses must also sign, whether the Will must also be notarized, and whether you must make a formal acknowledgement that the document you signed is your Last Will and Testament and not a contract for, say, new cable service.

There is also an important issue of whether or not one of your witnesses can be a beneficiary of your Will – this one can have serious consequences beyond simply taking longer and costing more to establish validity.  If the state you had your Will executed in allowed interested witnesses, and the state you move to does not, your Will may not be declared valid on the grounds that there were insufficient competent witnesses.

Self-Proving Affidavits:

Most states allow conclusive proof that the Will you signed is your Will by what is known as a “Self-Proving Affidavit”.  This is a notarized affidavit which states that the witnesses were present while you signed your Will, and that you acknowledged that the document you signed was, in fact, your Will.  Notice I said “most” states.  The District of Columbia, Maryland, Ohio and Vermont do NOT accept Self-Proving Affidavits; if you are moving from or to one of these states, you know this area needs to be addressed.

Will My Out-Of-State Documents Have the Same Effect?

Even if your Will, Trust and Powers of Attorney are legally valid, your aren’t guaranteed that they will have the same effect.

Powers of Attorney:

As a general rule, medical and financial institutions don’t like to take any chances when it comes to your Medical and Durable Powers of Attorney, so don’t be surprised if they fail to recognize one executed in another state.

Spouse Issues:

If you have opted to leave your spouse out of your Will, the state your Will is probated in may have requirements that change your intended distributions. In fact, Georgia is currently the only state that allows you to completely leave your spouse out of your Will without a written agreement; the majority of states have greater spousal protections – but even those vary and can make a difference in distributing your estate.

To give you a general idea, Texas is one of nine community property states which require half of the marital (a.k.a. community) property to go to the surviving spouse, no matter what your Will says.  Other states allow the surviving spouse a percentage of assets passing through your estate, and property not included in the probate estate – such as retirement and life insurance benefits.  If you’ve done anything but leave your entire estate to your spouse, you’ll know this is an area to be sure to look into with the help of a law firm in McFrisco.

Real Property:

Unless you’ve deeded it to trust, any real property you own in another state must be probated where it is located.  States differ on how real property passes to a spouse, so again, you’ll need to make sure to adapt your plan accordingly.

Advice from the best law firm in McFrisco

The best advice I can give you? If you have an out-of-state Will, take no unnecessary risks – get a new Will specific to your new state of residence. Can that be a hassle if you have a profession that causes you to move frequently? Understandably, yes – but it’s too important to neglect.

The Weeks Law Firm is your number one firm for estate planning in Frisco and we are here to help you get your estate plan Texas-specific. Give us a call at 214-269-290 to schedule a consultation at our Plano office, conveniently located off the Dallas North Tollway at 5600 Tennyson Parkway, Suite 345. We look forward to serving you!

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