Moving to a New State? Take a Look at Your Estate Plan

If you move, should you throw out your estate planning documents?

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If you move to another state, do you need to throw out your estate planning documents—your will, trust, living will (advance directive), and powers of attorney? A lot of effort probably went into the preparation of those documents (and a lot of money, if you hired a lawyer to draft them). You probably don’t want to start over from scratch.

Unfortunately, for most people it’s a good idea to get a new set of documents that clearly meet your new state’s legal requirements. The good news is that you’ve already done the heavy lifting—you’ve decided which documents you want and the key things you want them to accomplish for your family. It shouldn’t be difficult to get new documents that reflect the wishes you’ve settled on.

In any case, if your estate planning documents are more than a few years old, or if you’ve had any major changes in your family (marriage, divorce, new children or grandchildren) or property since you signed them, it’s probably time for a review anyway.

Wills

If you prepared a will in your old state of residence and it was valid there, then it’s probably valid in your new state as well; most states have laws that explicitly say this. So far, so good.

Still, out-of-state wills pose a couple of possible problems—or at least reasons to think about writing a new will.

Marital property rules. If you’re married and move from a community property state to a common law state, or vice versa, the rules about what you and your spouse own can change. In community property states, spouses generally own together anything they require while they’re married. (There are a few exceptions to this rule, such as property that’s inherited by just one spouse.) In other states, each spouse generally owns whatever is in has in his or her name. If you move to a community property state, the state may treat all your property as if it had been acquired in the community property state—which may not be what you and your spouse want. It’s a good idea to make new wills.

Learn more about who owns what when you're married.

You can make your will online, quickly and easily, using Nolo's Online Will.

Executors. Your executor (also called your personal representative) is the person you name in your will to wrap up your estate after your death—to collect your property, pay the bills and taxes, and distribute what’s left to the people named in the will. A few states restrict who can serve as your executor; for example, Florida requires your executor to be related by blood or marriage, or to be a Florida resident. If you’ve recently moved south and your will names a New Yorker as executor, the Florida probate court won’t allow that person to serve. Many other states allow out-of-state executors but impose additional requirements on them. For lots of reasons, it’s often best to have a local executor. So even though your will is still valid, you may want to make a new one, naming a different person as executor.

For advice on serving as an executor, see The Executor's Guide, by Mary Randolph.

Living Trusts

A revocable living trust isn’t subject to the same kind of rules as a will; it should be valid in any state, no matter where you signed it. But take a look to be sure it’s up to date. If you acquire real estate in your new state, you’ll probably want to hold it in the trust, so that it doesn’t have to go through probate at your death.

You can make a valid living trust online, quickly and easily, with Nolo's Online Living Trust.

Advance Medical Directives and Powers of Attorney

Some states explicitly accept advance directives (also called living wills) and healthcare powers of attorney that were signed in other states. Others don't have any laws on the subject, which means that healthcare providers in your new states might balk at out-of-state documents. But as a practical matter, no matter what state law says, your family is likelier to have an easier time getting the document accepted if it’s familiar to local medical providers.

Each state has its own forms, and they vary tremendously. Some states, for example, have a combined healthcare directive and power of attorney, so that in one document you both state your wishes for end-of-life care and name someone to carry out those wishes. In other states, the documents are separate. The terminology can be different as well; in some places, you appoint a healthcare “agent,” in others, a “proxy” to act on your behalf.

Get more information about advance directives and medical powers of attorney.

Beneficiary Designations

If you’ve named a payable-on-death beneficiary for an insurance policy, bank account, retirement plan account, or other asset, it should be valid no matter where you live. Your agreement is with the institution that controls the asset—the bank, insurance company, or retirement account custodian. Just make sure that the institution has up-to-date contact information for both you and the beneficiary you named.

by: , J.D.

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