Estate Planning & Moving Out of State
What happens to your Estate Plan if you move out of state? As time goes by, you may find yourself moving out of California to be closer to family, to pursue a new job, or to retire. Does moving to a new state mean you need to create a whole new Estate Plan? Probably not, but you may want to have it reviewed by a local Estate Planner in your new state.
Let’s examine some common components of a typical Estate Plan and whether they should be replaced (or at least reviewed) if you move out of state.
1. Revocable Living Trust
Many of our clients have a revocable living trust-based Estate Plan. A revocable living trust will be valid in any state except Louisiana. The unique inheritance laws pertaining to forced heirship and powers of appointment make it advisable to create a new trust if you move to Louisiana.
If you divide your time residing in multiple states, you will probably want to choose to have the trust drafted and executed in the state in which you spend most of your time, or where most of your assets are held.
If you purchase real estate in your new home state and choose to continue using your original California trust, make sure that the new property is properly titled into your trust. It should read “[your name] as trustee of [your trust name]”.
If your assets will be primarily located in your new state, you may want to explore creating a new trust with a local estate planning attorney.
If you have a Will-based Estate Plan and move out of California, you will probably want to create a new Will in your new state.
Each state has its own rules about who can serve as executor (or personal representative) to administer your estate after you pass. For example, in Florida, an executor must be related to you by blood or marriage or be a Florida resident. If your executor lives in California, the Florida Probate Court may not allow them to serve. So while your Will is technically still valid, you may want to create a new Will naming a local executor.
Other states may impose additional requirements on out-of-state executors. States may also differ on their requirements on what constitutes lawful execution of a valid Will.
Bottom Line: It’s definitely worth checking into the rules in your new home state with a local attorney and possibly creating a new will.
3. Advance Directive (Medical Power of Attorney)
For convenience, you will probably want to create new medical power of attorney forms in your new home state. Be aware that each state has its own version and they can vary significantly.
In some states, a document that allows you to describe your medical wishes may be called a “Living Will” or “Declaration”, while a separate document, often called a “Power of Attorney for Healthcare,” allows you to designate a person to make medical decisions on your behalf.
By contrast, in California, we use one document called an Advance Directive to do both. This chart provides an overview of what these documents are called in each state.
The terminology within the documents can differ as well. In California, the person you appoint to make medical decisions on your behalf is called an “agent”, while they may be called a “proxy” in other states.
Some states will accept out-of-state Advance Directives. For example, Idaho state law holds that “any authentic expression of a person’s wishes with respect to healthcare should be honored” (I.C. § 39-4509(3)).
Other states don’t have any laws on the subject. That vagueness means that your agent may run into resistance or experience a delay when trying to present out-of-state documents to healthcare providers in your new state.
As a matter of convenience, your agents are likely to have an easier time getting your documents accepted if they are familiar to local medical providers. That’s why you will probably want to get new forms drafted if you move from California to another state.
4. Durable Power of Attorney
A Durable (or Financial) Power of Attorney will be valid even if you move, provided it is drafted in a general enough manner. Still, it’s a good idea to have it reviewed by an attorney in your new state. Your new state may have different rules for what makes a valid Power of Attorney.
Also, check with your bank to make sure they will accept your Durable Power of Attorney and don’t require any additional forms.
5. Beneficiary Designations
For assets like life insurance or retirement plans that are payable-on-death, your beneficiary designations should be valid no matter where you live. Your agreement is with the institution that controls the asset. Just make sure that the institution has current contact information for both you and the named beneficiary.
Amending Your Trust
If you move out of state and wish to continue using our office to handle your Estate Plan, we can accommodate your desire for continuity. We offer virtual and telephonic trust reviews with an attorney to discuss changes you may be considering.
If you wish to have us amend your Trust, we can send you the documents to execute in front of a local Notary Public before sending them back to us to add to your Estate Planning file.
So if you create an Estate Plan in California and later move out of state, remember that some components of your Estate Plan are likely to remain usable. When in doubt, have your California documents reviewed by an experienced local Estate Planner in your new state just to make sure. Many attorneys offer a no-cost consultation which will allow you to hear their opinion on how your documents will hold up in your new home state.
Daniel Hunt is lead attorney and owner at Law Offices of Daniel Hunt. He is also a California State Bar Certified Legal Specialist in Estate Planning, Trusts & Probate Law.