Effect To Will When Moving to A Different State

A will is an estate planning document that allows a person, also known as the “testator,” to designate the way in which their property will be disposed of upon their death. The property that may be disposed of in a will could include both real or personal property.

In most states, in order for a will to be valid, the will must have each of the following elements:

1. Be In Writing;
2. Be Signed By the Testator: Additionally, although it is not a general requirement, a will should also be dated as this helps to reduce confusion regarding which is the correct will if there are multiple wills.
   • If the testator is not able to sign, such as if they are unable to use their hands, they are able to make a mark (such as an X). The witnesses signing can attest that the testator did in fact sign it;
3. Be Witnessed by Two Competent Witnesses: Additionally, the witnesses cannot generally be interested; meaning, they cannot be named in the will or otherwise have a stake in the will; and
4. Testator Must Have Capacity: The testator must have “testamentary capacity.” Testamentary capacity is generally met if the testator is above the age of 18, in the military, or is legally married, and:
   • Knows that they are creating a will;
   • Knows the effect of the will is to distribute their property upon their death;
   • They understand the property in which they are distributing; and
   • They understand who is receiving the property.

However, these requirements will vary depending on the state in which the testator resides, as well as what type of will is being created. An example of this would be how if the will is a holographic will, it generally does not need to be witnessed as long as the will is both written and signed by the testator.

Will My Original Will Be Valid In Another State If I Move?

When changing residences from one state to another, it can affect your will document. This is why it is a good idea to have your will reviewed when you move states, in order to make sure that it conforms with the state laws of the new state to which you are moving. To reiterate, this is because the requirements for creating a valid will vary from state to state.

Generally speaking, a will that is properly executed according to all of the required provisions in your former state should be regarded as a valid will by the laws of your new state. However, because the laws of each state are different, it is advised that you have the will reviewed by a lawyer who is familiar with the new area’s estate planning laws if you move to a different state.

As previously mentioned, a properly executed will is what determines how your property will be distributed upon your death. Such a will should be valid within every state, and the effect of distribution of your property will largely remain the same. The distribution of the property through a will is dependent upon the intent of the will’s creator; as such, the courts use this information during the probate process in order to distribute the assets, rather than using the differing laws of the state. The laws of the state generally only matter when a person dies without a will, or intestate.

However, if you do not have your will properly reviewed once you move to a different state, parts of the will that do not comply with the laws of the new state could result in higher probate costs. Additionally, some terms or definitions that have one meaning in one state could have an entirely different meaning in another state; this could result in property being distributed in a different manner, and not according to your final wishes.

What Are Some Common Will Requirements That Differ From State To State?

General areas that must be addressed regarding whether your will is valid in a new state include:

• Witnesses: Once again, each state requires that a will be signed by a specific number of witnesses. This is generally two witnesses, but the number can vary by region;
• Signatures: In the will document itself, different states will specify the location of the signatures of the testator and all witnesses;
• Self-Proving Affidavit: A self-proving affidavit is a written declaration that is made under oath before a notary public, or other authorized officer. It serves to prove that a will is valid in any given state. This affidavit should be attached to your will if it is legally recognized by the new state. The form of this affidavit is important; an example of this would be how in Connecticut, only the witnesses need to sign the affidavit in order for the will to be valid. However, in the state of Florida, the testator and the witnesses must all sign the affidavit. As such, a Florida court may not accept a Connecticut self-proving affidavit if it does not conform to Florida’s requirements;
• Holographic Wills: These types of wills are not witnessed, and are hand-written by the testator. They are not valid under most state laws, and generally should be avoided;
• Conflicts of Law: The new state may have considerably different probate processes that you have to follow in order to prove your will. Because of this, even though your will may technically be valid in your previous state of residence, you may have to comply with the new state’s laws in order to establish your will there;
• Location of Assets: Another determining factor is whether you have assets or property located in the new state in which you are moving to. Generally speaking, having assets in the new state will increase your chance of proving the validity of your will in the new state; and/or
• Classification of Property: Complications can arise if your new state has a different classification of marital property than your previous one. An example of this would be how if your will was executed in a state that does not have a community property system, and you move to one of the 9 community property states, you may have to change or redraft your will in order to achieve your intended result.

Will My Original Will Be Considered Valid Outside Of The United States?

If you move to another country outside of the United States, the “Full Faith and Credit Clause” of the Constitution would not protect the interest you have in the will. This is because wills are only protected by United States laws, and as such other countries may not need to honor it.

However, if the United States has agreements with other countries that allow wills made in the States to be honored and recognized in those countries, then a properly executed will would generally have the same effect in the other country as well.

Do I Need An Attorney For My Will To Comply With The New State’s Laws?

If you are moving states and already have a valid will in place, consulting with an experienced and local estate lawyer can help ensure your will remains valid in your new state of residence. An attorney will be aware of the new locality’s estate planning laws, and can also advise you regarding your legal rights and options under those laws.