We get this question a lot – from younger clients who know their job might get transferred someday. Also, it seems that more and more Californians are choosing to move to another state when they retire, including some of our clients. The answer is, of course, it depends.
Most of the time a will that is a valid will in one state will be a valid will in any other state. The same is true of a trust. The other components of your complete estate plan, however, are a different story. Both the Health Care Directive and the Durable Power of Attorney contain language that is very specific to the state statutes upon which they are based. If you move to another state I recommend meeting with an attorney there to discuss your estate plan. Chances are the attorney’s recommendation will be to create new health care directives and powers of attorney based on the laws of your new state.
If your estate plan also includes a HIPAA-compliant release for your private medical information, this will also have to be revisited, most likely. Our private medical information is protected under both federal and state law. You will probably be advised to create a new HIPAA release under the laws of the new state.
Although your will and trust will most likely be valid in your new state, certain issues having to do with community and separate property should be discussed with an attorney. Remember, separate property is anything you had before marriage. Community property is anything you acquired during marriage. If you are moving from one community property state to another, you won’t have any problems.
If you are moving from a community property state to a common-law state, where community property is not recognized, your trust and will should be fine. The assets that you used to call community property before your move will be considered to be owned one-half by each spouse. It’s worth getting an attorney’s opinion on this, however.
If you are moving from a common-law state to a community property state, though, legal advice is a must. Some community property states treat assets acquired during marriage while living in a common-law state just the same as community property. However, not all community property states treat your assets this way. Upon moving from a common-law state to a community property state you definitely need advice from an attorney.
Finally, it is important to have an attorney in your new state review your will and trust to make sure they will work the way you want them to on your death. In some states, for example, a spouse or a child cannot be disinherited, or can only be disinherited if certain specific language is used. An experienced estate planning attorney will be able to spot ineffective provisions and suggest alternatives.
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