In any comprehensive estate plan, a letter of instruction (LOI) is an important component. An…
Moving States and Planning Documents
For many reasons, an individual may have to move from one state to another. Whether it be due to employment opportunities or family, a concern that may arise is when an individual has planning documents, such as a Last Will and Testament or a Durable Power of Attorney, prepared under the laws of a state they have since left. When moving states, what planning documents need to be updated?
Last Will and Testament
In the case of a Will, due to the full faith and credit clause of the United States Constitution, which reads that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”, a Will executed in one (1) state must be honored by another state.
Specifically, as long as the Will meets the requirements of a valid Will and was validly executed under the laws of the state in which it was prepared and executed, then the other states should accept said Will as valid. When the testator passes away, the Court may require the nominated Executor under the “foreign” Will to provide them with an affidavit from an attorney licensed in the state where the Will was prepared to attest that the Will is valid under that state’s law.
For example, if an Arizona resident passes away with a Will prepared under New York law, the nominated Executor under that Will would likely need to obtain an affidavit from an attorney licensed to practice in the state of New York, preferably the attorney draftsman, to attest that the Will is valid under New York law. Similarly, Trusts will be honored in all states.
Durable Power of Attorney
While the same should be true for Durable Powers of Attorney and Healthcare Proxies, sometimes financial institutions, banks, medical professionals, and health care institutions may not accept documents that they are not familiar with. They may not be willing to risk accepting a document that they are not sure is valid.
Reciprocity becomes a bigger issue for Durable Powers of Attorney and Healthcare Proxies where the execution requirements differ between the states in question. Every state has its own law governing the creation and use of a valid Durable Power of Attorney and Healthcare Proxy.
The Uniform Power of Attorney Act of 2006 was intended to resolve this issue and eliminate differences between various state’s laws regarding Powers of Attorney. However, only twenty-nine states have enacted the Uniform Power of Attorney Act of 2006—New York not being among them. Where the Uniform Power of Attorney Act of 2006 is not enacted, a Durable Power of Attorney whose execution requirements are different from those in the state it is being used may be rejected. Accordingly, it may make sense for an individual to have valid Durable Powers of Attorney in all states that they regularly travel to or transact business in, or in the case of a person permanently switching residences the individual should have a Durable Power of Attorney re-done in their new residence state.
Guardianships provide a different conundrum. A guardian of an incapacitated individual is court-appointed and commissioned under the jurisdiction of the courts in the state where the incapacitated individual resides. If the guardian is attempting to move their ward to another state, the court in which the guardianship was commissioned no longer has jurisdiction of the incapacitated person. Accordingly, the guardian must initiate a proceeding in the state where the ward is being moved to transfer the guardianship proceeding to the courts in that state.
Moving from one state to another can complicate your estate plan and advanced directives. When a move across states happens, be sure you are prepared and update your planning documents. Start by seeking an experienced estate planning and elder law attorney to ensure your wishes remain intact as you cross state lines. Contact us today to learn more.
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