Are Estate Planning Documents Valid Across State Lines? Clients ask me about this from time to time. Alex, for example recently came to my office with that very question. He and his wife recently retired and moved to St. Louis from South Carolina to be closer to family. They had done the responsible thing 40 years ago in getting their estate planning affairs in order.
I shared with him several points related to this question of estate documents being honored in other states. If not executed properly, new documents need to be created. Alex did the right thing asking about this. Moving to a new state doesn’t automatically mean you need new documents. It is, however, a good idea to have your existing documents reviewed.
A document review is especially important when you own property outside the state where you live, as you want to avoid Ancillary Probate.
Estate documents across state lines are theoretically valid
In the very general sense your estate documents will be honored across state lines. You can have them created in Colorado and move to New Jersey and expect them to be honored. The United States Constitution makes provision for things of this nature in the Full Faith and Credit Clause. It requires states to respect the “public acts, records, and judicial proceedings of every other state.”
The bottom line is this: Assuming your documents were properly executed and are otherwise valid, your trust, will, and other estate documents are generally good across state lines.
The devil is in the details
While the law generally requires documents executed in one state to be honored in another, there are some finer points of execution that could potentially become a point of contention. States differ in the way they require estate planning documents to be signed. Missouri, for example, only requires a notary for Power of Attorney documents to be valid. Illinois, on the other hand, also requires two witnesses.
To be on the safe side, Quinn Estate & Elder Law goes the extra mile. Whenever possible we have the documents notarized with two witnesses. Doing it that way reduces the likelihood of any sticking points in a state with more stringent guidelines.
A caution about older documents
As with Alex, in many cases the issue is not moving across state lines. The age of estate documents can be problematic. As with other things in life in business, the legal climate goes through changes. Some of that is driven by the changes we see in health related laws.
A great example is the need for a HIPAA release. It was not even a consideration twenty years ago. The lack of one in today’s world makes it much harder for critical medical decisions to be made on behalf of a loved one. Another example relates to emerging legal considerations regarding long term care issues.
What catches some clients by surprise is the fact that some wills drawn up in the 70’s might not even be valid, as requirements have changed. If contested, it must be proven that a will was truly signed by the individual. Two witnesses recognizing the act of signing makes it certain, but a notarized signature can be entered as evidence in court. That becomes important when witnesses are no longer available.
When should documents be reviewed?
Estate plans need to be re-evaluated from time to time. While moving to another state might not cause a serious problem, it’s a good trigger point to check in with an attorney. There are several other good trigger points with life’s transitions. Marriage, divorce, retirement and the formation or dissolution of a business are good examples. Ask your attorney. Are your estate planning documents valid across state lines?