What Happens When You Have a Will Specific to a Certain State & You Move?

by Wayne Thomas
Most states will consider an out-of-state will valid if it meets the formalities of the state where it was executed.

Most states will consider an out-of-state will valid if it meets the formalities of the state where it was executed.

Photodisc/Photodisc/Getty Images

Moving out of state can represent a huge change for you. During this process, your focus might be on packing up and settling in rather than investigating how the relocation will impact the validity of your existing legal documents. However, knowing the areas in which state laws commonly conflict when it comes to wills, as well as how these issues are typically resolved, will help ensure that you avoid complications with your estate plan after the move.

Protect your loved ones by a legally binding will. Make a Will Online Now

Overview of Wills

A will is a legal document that specifies where your property is to go after you pass away. Without a valid will in place, your assets would instead pass according to state intestacy laws. These laws are extremely rigid, prioritizing your heirs based on how closely they are related to you. Because this scheme may be wholly at odds with your wishes, it is important to ensure that your will is valid in the location where it will be evaluated or "proved." Proving a will and the transference of property to your beneficiaries and heirs is done through a court-supervised process called probate.

Validity of Will

Most states have specific statutes stating that a will that meets the requirements of the state where it was executed is also valid in the state where you move and pass away, even if the formalities between states conflict with each other. For example, if your will is handwritten, or holographic, and is valid in the state where you created the document, it will likely be considered valid in the state to which you move, regardless of whether holographic wills are permitted in that state. Likewise, states often differ on whether a person who stands to inherit under your will can also serve as a witness. If the state in which you executed the will allows these "interested" witnesses, your new state will not declare your will invalid even if that state's laws mandate that all witnesses be disinterested.

Executors

Although an out-of-state will may be deemed valid in your new state, some provisions of the will may not be honored. Specifically, an issue can arise with regard to executors. An executor is the person you appoint in your will to participate in probate and administer your estate, which includes collecting your property, valuing it and then transferring it to your beneficiaries. Some states have strict requirements on who may serve in this capacity. Florida, for instance, only allows you to appoint an in-state resident or a blood relative. This means that if you executed your will out-of-state and appointed a local executor that is not related to you, a Florida probate court would be required to reject the appointment and make its own appointment. Further, even in states that do allow out-of-state executors, your appointment may be required to post a bond or follow other special requirements. For that reason, it may make sense to update your will and name a new local executor after you move.

Additional Considerations

There are some additional state law nuances that may impact your will in the new state. This means that unlike the deference that is given to the state of execution for determining the validity of the will, the state where you pass away will determine how certain provisions of your will are interpreted and what effect they have. For example, some states allow you to disinherit your children by simply not listing them in the will. In other states, you must either specifically state your intention to disinherit, or provide your children with some nominal inheritance such as $1.00. This means that if you do not plan properly, it is possible for your children to receive an inheritance despite your intention to leave them with nothing. Further, in some states, a will is automatically revoked upon divorce, while in other states, the will continues to stay in effect after this event, but any inheritance you left to your former spouse is stricken. The state in which you pass away may also have different rules on how you can allocate death taxes, as well as whether your will can waive the bond requirement for an executor.