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Does Your Will Travel Well When You Move to Another State?

According to an article from NJ 101.5, “Is that will still valid if you move?,” the majority of the time that will is going to be valid in the new state.

The first step in the analysis is to back track to the previous state of residence. Make certain that the will is validly executed pursuant to the statutes of the state where it was signed. The law in most states stipulates that the will must be signed by the testator, or the individual creating the will, as well as two witnesses. That’s what it will take to make the will validly executed. In most cases, if you have a will that’s prepared by a local estate planning attorney and then you move out of the state, it will be valid and acceptable to the courts there and admitted into probate in the new state.

But of course, there are a few exceptions. For instance, not every state will accept what is called a “holographic will,” which is a will that’s in the handwriting of the testator but isn’t witnessed or has just a single witness.

The next step in will scrutiny is based upon the probate laws of the state to which you move. In the event the will can be admitted to probate, there may be some provisions in the will that conflict with laws in the new state. These provisions would be invalid. One example of a state-specific probate law is the restrictions as to who is permitted to serve as executor. So even if your will is validly executed, the individual you designated as the executor might not be able to serve if the law of the new residence state prohibits it. There are states that have restrictions on non-family members serving as executors for those who live out-of-state.

The last security step is to ensure that the plan makes sense in the new state of residence. For example, in some states, probate is a relatively simple process—all you might need is a validly executed will. However, in other states, a living trust might be a better strategy if the probate process is more expensive or time consuming. Trusts are not subject to the probate process, unlike a will. In addition, if you move to a community property state like California, you will find that the law is very different as far as ownership of marital assets. You should conduct a thorough review of your estate plan with a qualified estate planning attorney whenever you move to a new state.

Reference: NJ 101.5 (June 17, 2016) “Is that will still valid if you move?”

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