Is a Will's Validity Affected When You Move Out of State?
A large number of retirees, and those who are planning on retiring, look to move to a new state to enjoy a different lifestyle than the one they had while working. This may involve new activities, moving closer to family and friends, or to enjoy a different climate. No longer are retirement communities strictly confined to Florida. In a recent survey by Bizjournals.com only 3 of the top 10 and 4 of the top 20 retirement destinations in 2007 were in Florida. Communities across the country are actively courting retirees.
Most persons nearing retirement age have actively started making plans for their estate, including creating a will. A legal question arises then if you move to a different state when you retire. If you have an existing Last Will and Testament and move, is your will still valid in your new state or will your heirs be forced to probate your will in your previous state? What if your will covers property in different states? The distribution of a person’s estate after their death is an area of state law and each state has their own rules about what a legal will must contain and how it may be executed.
Most states though do allow for the probate of a will which was written and signed in another state following that state’s law. This means that if you write your will in Michigan and then move to sunny Florida for retirement, Florida will accept your will in its court if it was valid under Michigan law or if its formation and execution conforms to Florida law as well.
Every state has its particulars but most state laws regarding wills follow some basic principles governing who may make a will and who may witness the will. The person making the will, the testator, usually must be an adult, and most states require two witnesses to the will, and the witnesses must know that the document the testator signed and that they are signing is a will. In some states, a will that is completely handwritten may not need to be witnessed. A handwritten will is called a “holographic” will and is valid in some states if the ‘material provisions’ of it are handwritten. Material generally means the part of the will that dispenses the person’s property. The basis for allowing a holographic will that was not witnessed is that the authenticity of the will can be determined through the handwriting.
Though the state may consider a will executed in another state valid and probate it, if some provisions in your will are invalid under the probating state’s law those provisions may be voided, even if they are valid under your original state’s law. One important area that states differ on is an interested witness. An interested witness is a witness to a will who also receives a gift from the will. Some states allow the gift, some states do not allow the gift, and some states allow the gift if the witness is a family member. Because a will is a legal document and states have different requirements you should always consult an attorney to discuss your particular estate planning needs.
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