Last week, I
began to answer a question posed by “J.D.”, who said that his young family
has delayed making an estate plan because they anticipate relocating (due
to work) in a few years. His brother recommended that he should not wait,
an attitude with which experienced wealth managers concur. J.D. wanted to
know if there is any kind of estate plan they can make now which will
still be good if they must relocate.
First, it is vital to
recognize that Texas is a vast state, and that if your job may relocate
you to another city within Texas, then mobility is not a legal issue for
you. While it is true that most Wills declare that you are a resident of a
particular county, the declaration is for venue purposes only. The law
actually states that a Will made in Texas is valid in all Texas locations,
even if you relocate within Texas after signing the Will.
fact, a Will made in Texas is going to be “valid” in almost any other
state to which you relocate. Several states formerly required three
witnesses for a Will to be valid, but it appears that those laws have been
changed to bring them in line with the vast majority of state that require
only two witnesses. (Vermont may have been the last state to change its
law from three to two witnesses, and that was done in 2005). Thus, if a
written Will is signed by you and is attested and signed by two witnesses,
it should be valid in any of the fifty states.
Be aware that
“valid” is important, but it is a low standard. Each state has a variety
of laws that make Wills not only valid, but efficient under their legal
system. One such nod to efficiency is the concept of a “self-proving
affidavit”. When you die, if the Will has to be reviewed by a Judge, the
Judge needs proof of the Will’s validity. Part of that proof is provided
by the witnesses who saw you sign the Will. If they signed the Will and
also signed a “self-proving affidavit” attached to the Will, then the
affidavit is all the Judge will require. If the Will did not include a
proper affidavit, then the witnesses may have to be tracked and brought to
court (an inconvenience for all, and possibly a large expense).
Many states, Texas included, have recently modified their laws to
acknowledge that mobility is an important consideration. The Texas
self-proof law, until recently, required very specific wording based on
the Texas law before self-proof could be considered legally effective. Now
the new law says that if a Will was legally self-proven under any other
state’s law, it is considered to be validly self-proven under Texas law.
This type of reciprocity makes it very much easier to move from
state-to-state. If you have an idea to what state your company may
eventually move you, your estate planning lawyer can check that state’s
reciprocity law and can adapt the terms of your Will to accommodate the
Your estate planning documents should, at
minimum, also include a Durable Power of Attorney and advance medical
directives. Reciprocity may apply to these additional estate planning
documents. Texas grants reciprocity to legally valid advance directives
that were created when you were a resident of a different state but later
relocate to Texas. Many other states will do the same for you if you move
there from Texas. For instance, if you create a Medical Power of Attorney
and a Directive to Physicians, then later leave Texas, your new state’s
laws may recognize the validity of the Texas documents under the laws of
your new state.
The point is that you should not wait to make an
estate plan just because you may relocate in a few years. You will protect
your family and your assets, and you will gain peace-of-mind by carefully
crafting an estate plan with your lawyer. If minor adjustments need to be
crafted after you relocate, it is just part of the cost of relocating.
Next week, we’ll examine another option: a Mobility Trust, which can
travel with you from state-to-state as you relocate.