This article looks at whether a will that is valid in one state would also be valid in other states or if there are legal issues that would make it invalid in a new state of residence.
Table of Contents
- Introduction
- What Makes a Will Valid or Invalid?
- How Your Will Was Created Could Affect Its Validity
- The Testator and Their Signature
- Witnesses
- Dated
- Notarized
- Terms of the Will May Invalidate It in a New State
- Ancillary Probate
- What About Other Estate Planning Documents?
- Do You Need a New Will? Get Legal Advice
Introduction
You spent time and money writing a last will and testament. Of course, you want your will to be valid when submitted to probate. However, if you’ve moved out of state since you wrote your will, you may wonder if there is anything in your new state’s laws that could affect the validity or effectiveness of your will. Do you need a new will when you move to a new state?
This article looks at whether a will that is valid in one state would also be valid in other states or if there are legal issues that would make it invalid in a new state of residence.
What Makes a Will Valid or Invalid?
State laws vary on what makes a will valid. However, there are general elements to a will that most states recognize as a valid last will and testament. Those elements are:
- Typewritten will
- Drafted by a person at least 18 years old, mentally competent, not under duress or the undue influence of another, and with the intent to write a will
- Signed by the testator (the will’s maker)
- With two or more competent, adult witnesses who saw them sign the document
- Dated, and
- Notarized by an authorized notary public
This description applies to many wills that exist today. If this describes your last will and testament, chances are very good that your legal document created in one state will be valid in any other state. However, check your state requirements. If you follow those requirements to make your will, your will is valid in other states.
How Your Will Was Created Could Affect Its Validity
The manner in which you draft a last will and testament can affect its validity.
Printed Wills
Typed or computer-printed wills are valid as long as other will elements are met (see above).
Hand Written Wills
A holographic will (handwritten) is valid in some states and not others, and sometimes only under limited conditions. Some states require that the entire will be handwritten. Others allow you to use a form with some sections handwritten. Many states require that it be signed and witnessed. Some require that a self-proving affidavit be attached to the will, signed by the testator.
- States accepting holographic wills: Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wyoming. California, Louisiana, Michigan, Nebraska, and Nevada require the handwritten will to be dated.
- States accepting holographic wills of armed forces members: Maryland (if created outside the U.S.) and New York (for service members, those accompanying the military, and mariners). These wills are valid for a limited time under the state’s laws.
- States accepting holographic wills if created in a state where it is legal: Connecticut, Hawaii, South Carolina, Washington, Wisconsin
- States accepting holographic wills for ancillary probate if accepted in probate court in another state: Alabama, Delaware, Iowa, Minnesota, New Mexico, Oregon, Rhode Island
Oral Wills
Most states do not allow oral wills (also called nuncupative wills). Some states allow them under very specific circumstances, such as when a person is in imminent danger of dying or has a terminal illness. For those states that do accept an oral will, you need witnesses who can testify that the will maker made those statements.
Because oral wills are challenging to prove in court, don’t count on an oral will being valid across state lines.
Video Wills
Video wills are not valid wills in any state. You can create a video will for the benefit of your heirs and beneficiaries, but it is only supplemental to a valid print will. A video recording does not serve as a will.
The Testator and Their Signature
Every state requires that the testator be a legal adult with sufficient mental competency to sign a will (“testamentary capacity“) and the intent to write a will.
- Some states allow those under 18 to sign a valid will if married or in the military.
- While the requirement for mental capacity does not vary from state to state, a probate court judge determines mental capacity on a case-by-case basis.
A valid will is signed by the testator, or a person acting under their direction and in their presence, or by a conservator acting under court order.
Louisiana and Wisconsin require the will maker’s signature on each page of the will.
Can an unsigned will be valid? Not usually. A probate court may accept an unsigned will as valid under certain circumstances, but if you want to ensure a new state accepts your will, sign it.
Witnesses
Most state laws require at least two competent adult witnesses to watch the testator sign the will before they sign it themselves. The witnesses don’t need to read it. They only need to know that the document they watched the testator sign is a will. The witnesses sign a statement that they saw the testator sign the will, and the testator knew they were signing their will. Some states allow the testator to sign it and then have the witnesses sign it later.
Twenty-six (26) states accept unwitnessed holographic wills: Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kentucky, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wyoming.
Many states require ‘disinterested’ witnesses, meaning they are not someone who could inherit under the will.
North Dakota allows testators to choose to have a will notarized instead of being witnessed.
If the will is valid in the state where drafted, it most likely is valid in a new state. If your witnesses were not sufficient or competent to serve as witnesses in your old state, your will is not valid in your new state.
Dated
Some states require that a will is dated; others do not. A handwritten will must be dated in California, Louisiana, Michigan, Nebraska, and Nevada.
It’s always best to date a legal document, especially a will. Failing to date a will can cause great confusion if someone were to find a prior will.
Notarized
North Dakota and Colorado allow testators to choose to have a will notarized instead of being witnessed. Louisiana requires that a will be notarized.
If there are state-to-state differences in notarization, a will finalized in the state of origin is typically accepted in the new state.
Terms of the Will May Invalidate It in a New State
What if some provisions in your will are not allowed in another state? Typically these relate to the inheritance rights of spouses and minor children. A community property state may not allow the disinheritance of a spouse, or state laws may vary on the share of real estate and property that a spouse inherits. While all states except Louisiana allow a testator to disinherit a child, many states require you to name that disinherited child specifically in the will.
Talk with a lawyer in your new state to understand how the legal difference in property rights may impact your will.
Ancillary Probate
If a deceased person owned property in another state, their executor or personal representative will likely have to open a probate proceeding in two states. The primary probate process will occur in the state where they were living at their death. Ancillary probate will take place in the state where the property is located.
Some states make ancillary probate easy. If the primary probate court approves of the executor/personal representative and declares the will valid, then the court handling the ancillary probate may only require a letter of authorization and a copy of the will.
In other states, the executor/personal representative must go through the entire probate process, including validating the will.
What About Other Estate Planning Documents?
An estate plan generally includes more than just a last will and testament. It may consist of a healthcare power of attorney, a financial power of attorney, and medical directives or a living will.
Just as with your will, most states will accept the legal documents drafted in another state, unless they conflict with the laws of that state. For example, if you live in a state that allows physician-assisted suicide, a state that does not allow that will disregard any medical directives regarding that process.
If your estate includes an irrevocable or a living trust, it is not impacted by differences between probate courts because an estate in a trust does not go through the probate process.
Do You Need a New Will? Get Legal Advice
When you move to a new state, even if your will is valid in that state it is a good time to review your will and see if you want to make any changes. For example, do you want to make any changes to your beneficiaries, personal representative, or guardians?
To be sure that your current place of residence honors your will and other estate planning documents, get legal advice from a local estate planning attorney.
