While the percentage of Americans moving out of state has slowed in recent years, it is still occurring everywhere. Whether you’re being transferred by a company, downsizing for retirement, or simply seeking a better environment for your children, if you’ve recently arrived in Ohio (or are planning to move to another state), I suggest you read the following.
Your will (you do have a will, right?) will probably still be valid; however, there are some exceptions. The following is a quick overview I wrote about a few years ago to give you an idea of some of the differences. It is by no means comprehensive and, in some cases, may be outdated. It does demonstrate that if you have just arrived in Ohio from elsewhere or are planning to move to another state, it behooves you to meet with an experienced estate planning attorney to review your existing will (again, you DO have a will, right?) to ensure it will be legally acceptable in your new state.
If a will is valid in one state, it generally will be valid in another. However, there are exceptions. If you move to or from Ohio, it is advisable to consult with an attorney to confirm whether your will remains valid. Below are a few of the key validity issues to consider. They support why it is wise to seek the advice of an experienced estate planning attorney if you have moved; it would save a lot of headaches and more in the long run. Just read on for some hurdles you could face …
Proving Your Will
Your will must be proved valid to the local court after your death. The states have differing requirements.
Witnesses
All states require that you sign your will before two witnesses. However, state laws differ on whether:
- The witnesses must sign in front of you
- The will must be notarized
- You must acknowledge that what you signed is a will
In some states, bequests to witnesses listed as beneficiaries may be reduced or eliminated because of their interest in the will. If an interested witness is disqualified in your new state, your will could lack enough competent witnesses.
Self-Proving Affidavits
Many states allow your witnesses to sign a notarized affidavit indicating they saw you sign and acknowledged that the document is your will. After you die, this affidavit can show that your will is valid. However, Ohio does not accept self-proving affidavits.
Type of Will
Certain types of wills are not valid in all states. For example, a handwritten (holographic) will is not accepted in about half the states, and many others vary on the number of necessary witnesses. A few states allow oral wills, but generally only for soldiers in active service or persons near death.
Spousal Gifts
State law varies on these issues if you have left your spouse out of your will:
· Percentage of Estate – Most states, including Ohio, allow the surviving spouse to take a designated percentage of assets in the decedent’s estate, but half of these also include property not part of the estate, such as life insurance proceeds, trust property, shares of joint property, and marital gifts.
· Community Property — Nine “community property” states require the surviving spouse to receive half of the marital property, even if not named in the will. Alaska allows this by written agreement.
· Full Disinheritance — In Georgia, your spouse can be fully disinherited.
Other Issues
· Reference to State Law – Many wills contain references to specific state statutes. Be sure your will reflects your new state’s laws.
· Ancillary Documents – Powers of Attorney and Living Wills should be changed, since local doctors, banks, etc. may refuse to follow forms of other states.
· Real Property – Real estate passing through your will must be probated in the state of its location. Therefore, if you own property in another state, your will would need additional probates.
Again, moving between states is common, but don’t assume your will from another state is valid in your new one. If you’re a new arrival, I’d be delighted to help you ensure you’re all set. Please call me at 513-399-7526 or visit my website at www.davidlefton.com for more information.