By Alex Montoya
Having a well-rounded estate plan (generally a will, revocable living trust, health care power of attorney, and durable power of attorney) is crucial for ensuring your wishes and desires are seamlessly carried out, and your loved ones are cared for at the end of your life.
Those who take the crucial first steps necessary to establish an estate plan are often left wondering whether those same documents will be valid if they later move to a new state. The short answer to the previous question is, generally, yes.
Despite the general validity of those documents, there are still many considerations you should take into account before or after a permanent relocation due to the nature of estate planning
1. Wills – As for the validity of a foreign will, Nebraska, like many other states, has a statute that upholds the validity of a will that was drafted and executed in a foreign state, provided that the will was executed in compliance with the laws at the time and place of its execution.
Despite the general validity of most foreign wills, you should still have an attorney in your new state review the out-of-state will to ensure the will’s provisions are legal in the new state. States vary
widely on laws related to, among other things, the division of marital property, who may serve as the executor or personal representative, and certain tax provisions.
2. Revocable Trusts – In contrast, revocable living trusts generally present fewer issues when it comes to determining validity and general application after relocation. Trusts are governed by contract law and normally allow for the maker of the trust to dictate the trust’s principal place of administration and which state’s laws will govern validity.
Again, you should always take your trust to a local attorney after moving to determine whether it would be prudent to revise the trust to align with the laws of your new state.
3. Health Care and Financial Powers of Attorney – Nebraska, like some other states, has a statute providing that a power of attorney for health care executed in a state other than Nebraska will be valid in Nebraska if it was legally executed under the laws of the state of original execution. As for the powers of attorney for financial matters, Nebraska’s adoption of the Uniform Power of Attorney Act (“UPOAA”) makes it even easier to determine the validity of those powers of attorney drafted in another UPOAA state. Under the UPOAA and Nebraska Revised statutes, a power of attorney for finances executed in a foreign state is valid if, when executed, the execution complied with the laws of the jurisdiction indicated in the power or, in absence of such indication, the laws of the jurisdiction where the power was executed.
Remember, not every state has adopted the UPOAA, and states that have adopted it may have changed or modified the usual provisions. Therefore, as with the above documents, powers of attorney for health care and for finances should always be reviewed with an attorney after relocating.
As you can see, it is important to have your estate planning documents reviewed after making a move to a new state. Each of the foundational documents relies on state-specific laws to determine validity and interpretation.
Contact Alex Montoya at [email protected] or any of the estate planning lawyers at AKC Law today to discuss how a move might affect or has affected your estate planning documents.