The good news is you've already handled the hard part in getting these docs together. And, to be clear, there's no reason you need to start all over again with a new estate plan.
You do, however, need to make sure that your last will, living trust, living will or advance directive, power of attorney, and any other estate planning document you may have are in full compliance with your new state's laws—and that these documents all still do what you intend for them to do.
Below is a brief explanation of how state law can affect the validity of various estate planning documents and what you need to do to make sure they are up-to-date in your new location.
Last Will and Testament
Every state has different requirements for the execution of wills, but the good news is that most states accept out-of-state wills that were properly executed according to that state's laws.
But that doesn't mean you're off the hook on making sure your will still achieves what you want it to achieve:
- Executor. One big consideration is whether your chosen executor or personal representative can serve in that capacity in your new state. Although most states allow out-of-state executors to serve, they may have special requirements for them to fulfill, such as posting a bond to ensure they will follow the new state's laws and procedures. Numerous states, such as North Carolina, require an out-of-state executor to appoint an in-state agent to accept legal documents for the estate.
- Marital Property. If you are married, something else to investigate is how your state treats marital property. Community property states treat marital property as being owned jointly, whereas spouses in common law states own property that is in his or her name. If you are moving to a community property state and you had previously lived in a common-law state (or vice versa), your will may not handle your property as you would like and you may need to create a new will to reflect your wishes.
- Probate: Probate, the court-supervised process of distributing a decedent's estate, also varies greatly by state. You will want to make sure your will still handles the issue of probate effectively, which may require some tweaking of the will's language or even drafting another will or other estate planning documents.
If you have a revocable living trust, it should still be valid in your new state, or in any state for that matter. The main consideration with your trust when you move is to make sure it is funded with all of the assets you want to pass directly to a beneficiary.
If you've bought a new home, for instance, you may want to revise your living trust.
Living Will or Advance Directive
A living will or advance directive — which states your wishes regarding medical care should you be unable to communicate them — is usually applicable across state lines, but it's not a guarantee.
Some states don't even address the concept within their statutes, making it especially hard to be sure whether an out-of-state living will or advance directive will be followed.
Because each state has its own forms, provisions, and language, your best course of action is either to be absolutely sure your documents will be valid if/when you need them or simply to draft new ones according to your new state's laws.
Power of Attorney
Similar to wills, most states will recognize and honor powers of attorney, including durable power of attorney, health care power of attorney, and financial power of attorney, that were executed out of state so long as they met the legal requirements of that state. It is not automatic, however, so you should check to make sure yours will still be valid.
For practical reasons as well as convenience, though, you may want to consider having a power of attorney that is located in your new state.
In addition to the above estate planning documents, many people also have life insurance policies, retirement and pension accounts, or pay-on-death (POD) or transfer-on-death (TOD) accounts within their estate plan. All of these provide that the benefits transfer directly to the named beneficiary or beneficiaries.
These policies and accounts shouldn't be affected by your move to another state, but you do need to ensure that your personal information, including your new address, is correct.
A Good Time to Update
As with any major life change, your move is a perfect time to make sure you have all your estate planning documents in order. An estate planning attorney in your new state can be a big help in determining whether your docs are still in good shape.
Even if you don't think laws in your new state will affect what you've already put together, it's still a good time to make sure all the names and numbers are up-to-date and that you've included all the property and individuals you want included in your estate plan.
Investing a little time now could save your loved ones a whole lot of hassle later.