Wills Have “Full Faith and Credit”

The United States Constitution requires every state to give “full faith and credit” to the laws of other states. Therefore, a will validly made in one state should be accepted as valid by every other state. But state-specific rules for drafting a last will and testament can impact the probate process and affect certain provisions in your will. This article discusses the legal issues that arise when you move to a new state of residence and do not update your will accordingly.

How You Created Your Will Could Affect Its Validity

Differences in a state’s probate code and procedure sometimes hinder and prolong the process of proving a will’s validity in court. For example, how you draft a last will and testament can affect its out-of-state validity.

What Makes a Will Valid or Invalid?

State laws vary on what makes a will valid, but there are several common elements to a will most states recognize. These 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 most valid wills today. While chances are that a legal document fitting the description above will be valid in a different state, you should still check your state’s requirements and the requirements of the state you are relocating.

Printed Wills

A typed and printed last will and testament is valid as long as you meet the other will elements (see above).

Hand-Written Wills

A holographic will is a handwritten will that is valid in some states but not others and sometimes under limited conditions. Some states require that the entire will be handwritten, while others allow you to use a form with some handwritten sections. Many states require that you sign your will in front of witnesses. Some states require that a self-proving affidavit be attached to the will to show that the testator properly signed it in the presence of witnesses. Review the bullet points below to see the different situations that a state will accept a holographic will.

• 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, and Wyoming. Note that California, Louisiana, Michigan, Nebraska, and Nevada require you to date your handwritten will.
• 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, and Wisconsin.
• States accepting holographic wills for ancillary probate if accepted in probate court in another state: Alabama, Delaware, Iowa, Minnesota, New Mexico, Oregon, and 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 in any state. You can create a video will for the benefit of your loved ones and beneficiaries, but it is only supplemental to a valid printed will. A video recording does not serve as a will.

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 the will. 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 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.

North Dakota allows testators to choose to have a will notarized instead of being witnessed.

Many states require “disinterested” witnesses, meaning they are not someone who could inherit under the will. However, there are some exceptions. Check your state’s laws.

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 you to date your will, while others do not. You must date a handwritten will in California, Louisiana, Michigan, Nebraska, and Nevada.

It’s always best to date a legal document, especially a will. It is important to date a will to avoid 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.

Are the Terms of My Out-of-State Will Valid in My New State?

What if some provisions in your will are not allowed in a different state? These typically relate to the inheritance rights of spouses and minor children. A community property state may not allow you to disinherit 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 an estate planning lawyer in your new state to understand how the legal difference in property rights may impact your will.

Ancillary Probate

If a deceased person owns real 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 takes place in the state where you have the property 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 it will disregard any medical directives regarding that process.

If your estate includes an irrevocable or living trust, it is not impacted by differences between probate courts because an estate in a trust does not go through the probate process.

Need an Updated Will?

If you recently moved to a new state and want to ensure the new state’s laws honors the provisions in your old state’s will, it is safest to review your will and decide if you need to make any changes or updates.

In some cases, it is best to draft a new will under the laws of your current state of residence. With FindLaw’s do-it-yourself last will and testament template, you choose your new state from the drop-down menu, and we will generate a form that complies with your state’s will requirements. Consider using this easy and inexpensive option to create a simple will and protect your family members from a confusing probate process.

If you still have questions regarding the validity of your estate planning documents in your new state, get legal advice from a local estate planning attorney.