** This article has been revised from its original version which was published on Septiembre 15, 2021.

For many reasons, an individual may have to move from one state to another. Whether it’s due to employment opportunities or family, you may want to review your estate plan prepared under the laws of the state you left. If you are moving in or out of New York, Russo Law Group, PC, can help review out of state documents or anticipate changes that may impact your estate planning in New York.

What Estate Planning Documents Need to be Updated When You Move?

Última voluntad

In the case of a will, due to the full faith and credit clause of the United States Constitution, which reads that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”, a will executed in one state must be honored by another state.

Specifically, as long as the last will and testament met the requirements of a valid will and was executed under the laws of the state in which it was prepared, then the other states should accept it as valid. When the testator passes away, the court may require the nominated executor under the will to provide them with an affidavit from an attorney licensed in the state where it was prepared to attest to its validity under that state’s law.

For example, if an Arizona resident passes away with a will prepared under New York law, the nominated executor would likely need to obtain an affidavit from an attorney licensed to practice in the state of New York, preferably the attorney draftsman, to attest that the will is valid under New York law. Similarly, trusts will be honored in all states.

Poder notarial duradero

While the same should be true for durable powers of attorney and healthcare proxies, sometimes financial institutions, banks, medical professionals, and health care institutions won’t accept unfamiliar documents. They may not be willing to risk accepting a document that they aren’t sure is valid.

Reciprocity becomes a bigger issue for a durable power of attorney and health care proxy where the execution requirements differ between the states in question. Every state has its own law governing the creation and use of a valid durable power of attorney and health care proxy.

The Uniform Power of Attorney Act of 2006 was intended to resolve this issue and eliminate differences between various state laws regarding powers of attorney. However, only twenty-nine states have enacted the Uniform Power of Attorney Act of 2006—New York not being among them. Where the Uniform Power of Attorney Act of 2006 is not enacted, the execution requirements are different, and your power of attorney may be rejected. Accordingly, it may make sense to contact an estate planning attorney to have valid durable powers of attorney created in all states they regularly travel to or transact business in. For people permanently switching residences, have a durable power of attorney re-done in the new resident state.

Tutelas

Guardianships provide a different problem. A guardian of an incapacitated individual is court-appointed and commissioned under the jurisdiction of the courts in the state where the incapacitated individual resides. If the guardian is attempting to move their ward to another state, the court in which the guardianship was commissioned no longer has jurisdiction over the incapacitated person. Accordingly, the guardian must initiate a proceeding in the state where the ward is being moved to transfer the guardianship proceeding to the courts in that state.

Moving from one state to another can complicate your estate plan and advance directives. When a moving in or out of New York, be sure you are prepared to create or update your estate planning in New York. Start by seeking an experienced elder law or estate planning attorney to ensure your wishes remain intact as you cross state lines. Contact Russo Law Group, PC., today to learn more, or call 1 (800) 680-1717.