One commonly asked question we hear from our clients is: What happens to my Estate Plan if I 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 attorney.
In this blog post, we’ll take a look at the most common components of an Estate Plan and whether you should replace or at least have them reviewed if you move out of state.
Many of our clients have a Revocable Living Trust-based Estate Plan. A Revocable Living Trust will be good in any state. The one exception to this rule would be if you move to 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 a home in the new state and choose to continue to use your original Trust, make sure that new property is titled into your Trust.
If your assets will be primarily in the 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 their own rules on 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.
Short answer: For convenience, you will probably want to get new medical power of attorney forms in your new home state.
Longer answer: When it comes to medical power of attorney forms, 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 Health Care,” 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 health care 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.
Bottom line: 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.
A 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 Power of Attorney and don’t require any specific additional forms.
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.
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 or telephonic trust reviews with an attorney to discuss changes you may be considering.
If you wish to have us Amend your Trust, we can email or mail draft documents for you to execute in front of a local Notary Public before sending them back to us to add to your Estate Planning file.
If you create an Estate Plan in California and move out of state, some components of your Estate Plan are likely to remain usable. When in doubt, have your California documents reviewed by an experienced local estate planning attorney 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.