We get this question a lot. People create an estate plan including, at least, a will, and then move to another state. They want to know if their existing wills are still valid the new state. The answer is a qualified "yes, sort of."
If the will was valid in the other state, then it is valid in your new state, which means it will be admitted to probate. That said, there are a few nuances that need to be added for a complete answer:
- First, a probate judge in your new state is not expected to know the laws of every state, so he or she will need your estate attorney to introduce evidence to prove that the will was valid when and where made. That might mean hiring an attorney in the state where the will was executed to research the law in effect as of the date of the will and prepare an affidavit that the will was valid when made in the other state. That adds to the time and expense of probate.
- Just because the will is "admitted" to probate does not also mean it is "proved". If it is not "self-proving", then witnesses will need to be called to testify, regardless of whether the will was made in another state or in the state in which you reside now. If it does have a "self-proving" affidavit, that affidavit is probably valid in the state where made (especially if an attorney helped you draft it) but that does not necessarily mean it is valid in the state in which you have moved. For example, if you have a will made in a state that requires only one witness, and that witness signs a self-proving affidavit that is notarized, that does not mean that the will is still considered self-proving if you move to a state that requires two witnesses. Having to locate the witnesses from the other state and call them to testify in the new state adds to the time and expense of probate.
- Just because the will is considered valid where made and in the new state does not mean that the new state will enforce every provision as written or that it will work as intended. For example, if you lived in a community property state when you made your will, and your will intentionally disinherits your spouse (which is perfectly "legal" in a community property state), you might be shocked to learn that when you move to a separate property state that your spouse WILL be able to claim a hefty percentage of your estate against your will. If you still want to disinherit your spouse after you have moved to a separate property state, you will need to engage in new and different strategies to accomplish that. (Just FYI, disinheriting a spouse is not necessary a sign of lack of love and affection. This is often done intentionally for perfectly innocent or intelligent reasons.)
The bottom line is if you move to another state, you always should have your estate plan reviewed by an experienced estate planning attorney in the new state, and most likely some updates will be needed.