top of page

Mobility Issues with Traditional Estate Planning

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.

In 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 anticipated relocation.

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.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, February 15, 2013


bottom of page