Q. As a follow up to the story you did about what happens when an estate goes to probate, what happens if a will is prepared when a person is the resident of one state and then moves to a different state? Is the will still valid?
— One the move
A. In most cases, the will is going to be valid in the new state.
The first level of scrutiny is the most basic — making sure the will is validly executed according to the law of the state where it was signed , said Mary Scrupski, the director of estate planning with Prestige Wealth Management Group in Flemington and Millburn.
She said the law in most states is that the will has to be signed by the testator — the person making the will — and two witnesses. This makes it validly executed.
There are a few exceptions, she said.
For example, not all states accept “holographic” wills. These are wills that are in the handwriting of the testator and are not witnessed or only have one witness.
“If you had your will prepared by a New Jersey attorney and move out of state, in most cases, it will be valid from the point of admitting it to probate in the new state,” she said.
There is a second level of scrutiny that’s dependent on the laws of the state that you move to.
Scrupski said even if the will can be admitted to probate, some of the provisions in the will might conflict with the law in the new state and could be invalid.
For example, some states have restrictions on who can serve as executor.
“Therefore, even if your will is validly executed, the person you name as executor might not be able to serve if the law of the new residence state prohibits it,” she said. “Some states have restrictions on non-family members serving as executor if they reside out of state.”
The third level of scrutiny, Scrupski said, is to make sure that the plan makes sense in the new residence’s state.
In some states, such as New Jersey, probate is a relatively easy process and all you might need is a validly executed will, Scrupski said. But in other states, a living trust might be a better option because probate is more expensive or time consuming.
“Also, if you move to a community property state such as California, the law is very different regarding ownership of marital assets,” she said. “A thorough review of your estate plan would be recommended whenever you move to a new state.”
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