If you find yourself making an interstate move, there will be plenty of logistics to tackle - purchasing or renting a new home, updating your driver’s license and car registration, getting your children settled in a new school, and finding new doctors, but do you also need to update your estate planning documents? In theory, it may not be necessary due to the full faith and credit clause of the United States Constitution which requires legal documents such as Last Will and Testaments validly executed in one state to be recognized in all others. However, for practical reasons, it is wise to update your documents to ensure that they will be recognized when you need to use them.
While a validly executed Last Will and Testament will almost undoubtedly be recognized in all 50 states, a comprehensive estate plan encompasses more than a Will. You may have also executed a Power of Attorney, Health Care Proxy, Living Will, and possibly a Living Trust, and you may be better served having them reviewed for compliance in your new state.
Your advance directives, such as your Durable Power of Attorney, Health Care Proxy, and Living Will, may also be recognized by institutions in other states, but unfortunately, sometimes banks and hospitals are unfamiliar with out-of-state documents and will reject them. These organizations are doing so in an abundance of caution so as not to rely upon the authority of a possibly invalid document. While this may be prudent on their behalf, it can be a problem for you if you or a loved one needs to rely on your Power of Attorney or Health Care Proxy because you are incapacitated and require assistance. In order not to find yourself in such a position, you should seek the counsel of an estate planning attorney in your new state of residence to update your advance directives in accordance with the laws of that state. Failing to have a valid Durable Power of Attorney or Health Care Proxy at a time of incapacity could mean that your loves ones need to initiate a court proceeding to become your appointed guardian – a costly, time-consuming, and thankfully avoidable, process
Trusts, just like Wills, are legal documents that should be recognized across borders. The problem Trusts face when moving across state lines is that all Trusts have different goals and while the Trust may accomplish the desired goal in the state in which it was executed, a new state may have different requirements. This may apply, for instance, to a Trust drafted for long-term-care asset protection purposes. A Trust drafted in one state for the purposes of sheltering assets for Medicaid eligibility may not accomplish its goal if the Grantor moves to another. Medicaid eligibility rules differ from state to state and therefore if you know you plan to move, you should always consult with an attorney from that state before signing any documents in your current home state. Further, if you already have a Trust, you should find an experienced attorney to review it after your move to make sure that its terms will still accomplish your personal goals.
If a loved one has been appointed a Guardian due to their incapacity, that Guardian has been appointed by the court in the jurisdiction in which they reside. If the Guardian wants to move the incapacitated person to another state they will need to begin a new guardianship proceeding in the state of their new residence where a court will have jurisdiction over the individual. This is a headache that anyone would seek to avoid, therefore, it is best to make sure your advance directives are always up to date.
If you find yourself making a move out of state, you should contact a qualified estate planning attorney who will ensure that your documents will be valid when the time comes that you need them. If you moved to New York and would like a New York Estate Planning Attorney to review your documents, feel free to call the Law Offices of Roman Aminov, P.C. at 347-766-2685 for a free phone consultation.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed local estate attorney in NY or your state.
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