The short answer is generally yes, BUT you will want to have your will, trust, advance health care directive, and power of attorney reviewed by a local attorney in your new state. Here's why:
Laws Differ From State to State
States have varying laws related to the creation of certain estate planning documents. For instance, some states, including Hawaii, allow witnesses to a will to be "interested" witnesses while other states do not. This means that the witness is a beneficiary under the will.
However, generally, if a will was created in accordance with the state law where it was executed, then the will is valid in other states. Still, if you have any other reason to update in addition to moving, then it is probably a good idea in order to avoid any potential problems. A trust is governed by contract law so they pose even fewer problems from state to state.
That being said, state estate and inheritance tax laws vary from one state to another. Hawaii has an estate tax, but does not have an inheritance tax. Some states have the opposite, both, or none. Furthermore, the exemption amounts can vary from state to state. If you've done any tax planning for state estate or inheritance taxes, you'll want to have your documents reviewed to ensure that they are still accomplishing your goals.
Practical Considerations
Chances are your successor personal representative (executor) still lives in your former state. When it's time for probate, your personal representative may find it difficult to administer your estate from so far away. Even worse, if your new state doesn't allow out-of-state personal representatives, then the court may appoint someone else.
Furthermore, your witnesses likely live in your former state as well. Some states, including Hawaii, allow self-proving affidavits, which is a sworn statement attached to the will attesting to the validity of the will. If your new state doesn't allow self-proving affidavits, then your witnesses might need to travel to your new state to come to court or your personal representative will need to obtain affidavits from them. The problem with either of these scenarios is that your witnesses may be difficult, if not impossible, to find.
The Bottom Line: Your Estate Planning Documents are Generally Valid if You Move To or From Hawaii
Your estate planning documents are generally valid in your new state. However, it would be prudent of you to review your documents in your new state and determine if there are any reasons such as major life changes (i.e., birth, death, marriage, divorce, etc.) or new goals that may necessitate an update. Your estate planning documents are too important to take any unnecessary risks in the sake of saving a little bit of money.
Imagine a hospital not honoring your loved one's advance health care directive that allows you to obtain information or make health care decisions because it does not conform to the new state's requirements or because the staff is unfamiliar with your former state's format. By the time everything is sorted out, it could be too late.
The amount of money you save today will not be worth the risks involved. Get some peace of mind and update your documents.
This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by contacting our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
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