Generally, if a will is valid in one state, it will be valid in the next state. However, if your state laws differ in the areas discussed below, a revision or a completely new will is likely warranted.
Proving Your Will
Your personal representative will have to prove the validity of your will to the local court after your death. The states have differing requirements.
All states require that the testator sign a will before two witnesses (Vermont no longer requires three). State law differs on whether or not:
- the witnesses must then sign in front of the testator;
- the will must be notarized; or
- the testator has to acknowledge that what she has signed is a will.
Additionally, in some states, if a witness is listed as a beneficiary in the will (aka “interested”), that person’s gift may be reduced or eliminated. If an interested witness is permitted in your old state but not in your new one, your will could fail for lack of enough competent witnesses.
At the time you sign your will, most states also allow the witnesses to sign a notarized affidavit indicating that they witnessed the testator sign and acknowledge that the document is his or her own will. After you die, this affidavit can be used as conclusive proof that your will is validly yours.
However, be careful if you lived in or moved to Maryland, the District of Columbia, Ohio, or Vermont, as these states do not accept them.
Type of Will
Certain types of wills are not valid in all states:
- Holographic Wills – These are ones written entirely in the handwriting of the testator. About half of the states do not accept them at all, and the other half vary on the number of witnesses needed for them to be valid.
- Oral Wills – A few states, including Virginia, allow wills to be made orally. However, this rule is generally limited to specified situations such as for soldiers in active service or during the decedent’s last illness.
State law varies if you have left your spouse out of your will:
- Percentage of Estate – Most states allow the surviving spouse to elect to take a designated percentage of the decedent’s estate. All such states calculate this share from assets passing through the will, but half of these also include other property not included in the estate, such as life insurance proceeds, trust property, shares of joint property, and marital gifts.
- Community Property — Nine “community property” states require the surviving spouse to receive half of the marital property, even if not named in the will. Alaska allows this arrangement by written agreement.
- Full Disinheritance — In Georgia, the testator’s spouse can be fully disinherited.
- Reference to State Law – Many wills contain references to specific state statutes. Be sure to change these clauses so that your will harmonizes with your new state’s law.
- Ancillary Documents – Powers of Attorney and Living Wills may need to be changed, since local doctors, banks, etc. are most comfortable using their own state’s forms, and may refuse to follow any others.
- Real Property – Real estate passing through your will must go through probate in the state of its location. Therefore, if you own property in another state, your will would need to go through multiple probates. Additionally, two-thirds of states allow certain property to pass to a surviving spouse through either community property or “tenancy by the entirety” ownership, so you will need to strategize if your new state’s law differs from your prior one.
- Effect To Will When Moving to A Different State (legalmatch.com)
- Can You Disinherit Your Spouse? (wills.about.com)
- What is a Self-Proving Affidavit? (www.texaswillsandtrustslaw.com)