Elder Law Tips: Is Your Old Will Valid In A New State Of Residence?
How often do you think about your will & testament?
This time of year, people start moving. Whether relocating within the same neighborhood, town, a new town in the same state, or a completely different state. Roughly 40 million people move from one location to another within the United States each year. These moves happen primarily between April and September.
I’m often asked by clients who are considering a move to another state if their Last Will & Testament will be legal in their new state of residence.
And the answer typically is yes. That is, if it’s a will & testament executed according to the rules of the state of Georgia.
However, the requirements for a will to be deemed valid and the rules surrounding the interpretation of a will are governed by state law. Often, the laws differ from state to state. It also depends on the reason for your move to a new state. Some people move for tax purposes which I will address.
Elder Law Tips: When You Move To A New State Have Your Will & Testament Reviewed
If your will has recently been updated to reflect major life events such as change in marital status, deaths, and births, you’ll still want to schedule a review with an experienced trust and estate attorney in your new state. In this meeting you’ll want to ensure all nuances of that state are addressed.
For instance, in some states, your personal representative must be a resident of the state in which you reside. That’s just one example and there are so many more. I won’t be able to include them all. So please, if you are relocating to a new state, find a reputable trust and estate attorney. One important topic will be reviewing your will so there will be no unpleasant surprises.
Relocating For Tax Purposes
If you are considering relocating from State A to State B for tax purposes, you may want to consider drafting a new will in your new state of residence.
Why? Because assessing where an individual is domiciled for tax purposes involves an analysis of multiple factors, including where you drafted and executed the will. This means if you are relocating from Maryland to South Carolina due to tax considerations, it would strengthen your domicile argument if you have a will that was drafted and executed in South Carolina. If you were to relocate and suddenly pass away with a will that was drafted and executed in Maryland, the address on your driver’s license is in Maryland, you were registered to vote in Maryland, your attorney is based in Maryland, etc., then a court could deem you still domiciled in Maryland for tax purposes.
Additional Questions Regarding Holographic And Video Will
I’m often asked about the legality of handwritten wills. The main question being, will the handwritten will stand up in court and be recognized as legal? One historic case may provide context.
Seventy years ago, Canadian farmer Cecil George Harris was trapped under his tractor and used a pocketknife to etch his final wishes into one of the implement’s fenders.
Harris’ immortal words – “In case I die in this mess, I leave all to the wife. Cecil Geo Harris” – have been carved into legal textbooks ever since his accidental death in 1948. The famous fender was accepted as a valid last will and testament by the probate court and survives in a display at the University of Saskatchewan College of Law.
A “holographic” or handwritten will is generally not witnessed by third parties and hand-written by the testator. In some states, such as Georgia, a holographic will is not valid. In other states, a holographic will could be valid, dependent upon certain factors. For example, both Maryland and New York have laws in place that recognize holographic wills, but only if they are made by members of the U.S. armed forces. Clearly, imminent, unexpected death is the dominant factor in whether a handwritten will is going to be considered legal. The point is that most people are not faced with these types of situations. Most people have ample time to execute a proper will according to the laws of the state.
Video wills are often featured in fictional movies and TV shows. However, outside of the Hollywood film world, video wills are not recognized as a form of will in any state. States may recognize a video will as a valid oral will if it meets all the requirements, but a video will, by itself, is not a valid will. However, using video to record a will signing can be a good method to prevent a will contest. A video recording of the will signing allows your family members and the court to see that you are freely signing the will and makes it more difficult to argue that you did not have the requisite mental capacity to agree to the will.
I cannot overstate the importance of having your Last Will & Testament reviewed by an experience estate and trust attorney in your new state of residence. Many elderly people relocate to be near their adult children and do not think about their will. If you have just moved to Georgia from another state or are relocating your parents to a new state from Georgia, give my office a call at 404-370-0696. Let us review your will if you are new to the state and perhaps help you locate an attorney in the new state where you will soon reside.
Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!