Do I Need A New Will If I Move To Another State?

A Will that is properly executed in one state is generally valid in another state. This is based on the Full Faith and Credit clause of the U.S. Constitution. 

That said, there are state-specific rules for the drafting and execution of Wills, and the probate process, that can vary from state to state. While all 50 states have adopted the Uniform Probate Code, each state has the discretion to tweak the Code language as it sees fit. These variations may impact certain provisions in your Will, and affect how the probate process may apply to your Will.

Different states may require different elements for a Will to be valid. Many states require that the Will be typed or printed. Other states allow hand-written Wills ("holographic" Wills). There may be variations as to notarizing a Will, and who must witness the signing.

Estate and inheritance taxes may differ from state to state.

Property laws can vary from state to state, and some provisions in a Will executed in one state may not be valid in some other states. In the majority of states, common law applies, wherein a spouse that acquires property solely and completely owns that property. However, nine states apply community property law. In this case, all property acquired by either spouse is owned jointly by both spouses. If you have a Will executed in a common law state and you move to a community property state (or vice versa), there are issues that may arise after you die.

Moving is exciting, but it can be stressful and filled with lots of tasks. When relocating to a new state, don't take chances with your estate plan. Seek a qualified estate planning attorney in your new state and have them review your existing Will. In addition, it would also be prudent for you to have the new attorney look over your Health Care Directive and Power of Attorney.

What To Expect When Executing Your Will.

You have been diligently working with your attorney to put together an estate plan that meets your expectations. You have reviewed the drafts your attorney has sent you and you are now ready to finish the process. The next step is to execute--sign--your Will. How does this work and what are the steps you will be taking?

Every estate planning firm does things a little differently, but here's what I do.

• COVID-19 precautions: the wearing of masks by all persons present and social distancing. At this time I am taking precautions to minimize contact. That means no in-office meetings, but drive-up signing instead. This occasion is the only time we would meet in person. The execution takes place while you remain in your vehicle.
  
• Only the necessary persons will gather. I and the two witnesses will stand outside your vehicle and perform our duties as efficiently as possible. I will also serve as the Notary Public. The entire execution process takes about 15-20 minutes. The two witnesses will be present during the entire process.
  
• Verification of your name and identity. You will state your full name and confirm that this Will is to be your most recent Will, revoking any previous Wills you may have made.
  
• Testamentary intent and capacity. You will confirm that you are currently of sound mind and that this Will represents your intent to convey your property to the beneficiaries named in the Will.
• Review the Will. You look over and make sure that the Will contains all the provisions you have requested.
  
• Avoiding potential undue influence. At this time any family members who may be present must leave the area. Does the execution of this Will represent a statement of your true intent?
• Signing. You sign the Will in the presence of the two witnesses.
• The two witnesses sign and date the Will after you have signed.
• Self-proved affidavit. This is incorporated into your Will and is acknowledged by a Notary Public.
• Your documents. Your Will is now fully executed. I will make a copy for the firm's files, then give you the original, executed Will to take with you. The firm does not store original documents on behalf of its clients.
• Instructions on storing the Will. I will discuss the best practices for safe-keeping of your Will.
• Conclusion. After the execution process is complete, I may address any further questions you may have. You will also receive a Termination of Engagement letter, as the firm's representation in your matter is now complete.

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If you don't have an estate plan, now is a good time to determine the best course of action for you and your family. Contacting a qualified estate planning attorney is the first step.

What's All This Self-Proved Wills Stuff, Anyway?

There are certain legal requirements for executing a valid Will in Minnesota. Your Will must be in writing, you must sign it in the presence of witnesses, and you must have testamentary capacity at the time you sign the document.

Executing a Will in Minnesota does not require a Notary Public. However, by taking the additional step of making your Will self-proved (which does require acknowledgement by a Notary), that helps establish that your Will was properly executed, in the event it is contested in court.

To make a Will self-proved, you and two witnesses acknowledge that you signed and executed the Will voluntarily, that you are at least 18 years of age, not under undue influence, and of sound mind. This is documented in a self-proved affidavit attached to your Will. You and the two witnesses sign the affidavit while in the presence of one another, and those signatures must then be notarized.

Under Minnesota law, a properly executed self-proved Will is automatically presumed by the probate court to be an authentic Will. That does not mean the Will is completely immune to challenge. In fact, no Will is certain to be air-tight. However, a self-proved Will is more difficult for an interested person to challenge in a Will contest. Since the proponent of a Will (usually the personal representative) bears the burden of proof in court to show due execution, having the Will self-proved adds evidentiary weight to defend it if contested.

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Crafting a Will that meets your wishes is an important tool to protect your assets for your loved ones. Talking to a qualified estate planning attorney is a great place to start.

What's All This Witness Stuff, Anyway?

If you are contemplating having an estate plan prepared, it's important to know that there are a few requirements under Minnesota law to legally complete (execute) the documents. Some of the documents require the presence and signatures of witnesses.

Wills:

The Will must be signed by the you, (the testator), or signed in your name by someone in your conscious presence, plus it must be signed by at least two individuals who have witnessed your signing.

For added protection, your Will should be self-proved. A Will is self-proved when you and the witnesses acknowledge in an affidavit that you signed and executed the Will voluntarily, within the presence of at least two witnesses, that you are at least 18 years old, not under undue influence, and of sound mind. The affidavit must be acknowledged by a Notary Public. Your Will can be made self-proved at the time it is executed or at any time thereafter.

Making your Will self-proved helps establish that it was properly executed, in the event it is contested in court. Thus, witnesses to a self-proved Will are not required to testify in court, as the court automatically deems the self-proved Will to be authentic. This is important, as a proponent of a Will (usually the personal representative) has the burden of proof to show that the Will is valid. If the Will is not self-proved, at least one of the attesting witnesses would be required to provide testimony in court.

Any competent, adult individual may act as a witness to a Will, and Minnesota law does not require the witnesses to be "disinterested." However, it is strongly advised to never allow any interested persons (i.e., beneficiaries) to act as witnesses, to avoid an appearance of conflict of interest.

Power of Attorney:

Unlike in the case of Wills, executing a Power of Attorney does not require the presence of witnesses, but it does require you (the principal) to sign the document. The execution must also be acknowledged by a Notary Public.

Health Care Directives:

To execute your Health Care Directive, it must be signed by you or someone authorized to sign for you, and either acknowledged by a Notary Public or signed by two adult witnesses.

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If you are thinking about obtaining an estate plan, a qualified Minnesota attorney can help you get started.