Common Issues When Validating a Will
When someone passes away without a will, state law dictates how their possessions are distributed and if they can be given away. To avoid letting state laws decide how their possessions are divided, many people create a will that communicates their intent for their assets.
However, all 50 states have different laws regarding how wills are validated and interpreted. Most states recognize wills executed in other states, but some don't.
For this reason, it is essential to ensure that your last will is valid in the states you might be considering moving to. You might need to change or update your will if you're thinking about relocating.
Here are some factors that can affect a will's validity and interpretation according to state laws.
Common Areas That Cause Problems
For a will to be validated by a state court, interpretation and construction are essential. The areas that most commonly fall under scrutiny are:
- Tax Domicile
- Conflicts of Law
- Marriage and Divorce
Moving to Change Your Tax Domicile
States have various statutes about the apportionment of death taxes, different death taxes, and multiple rules for taxing trusts and estates' income.
If one of the reasons you are moving to another state is to change your tax domicile—the place you intend to reside and pay taxes from—you might want to consider completing a new will because you may not have all of the boxes checked to establish that state as a domicile yet.
For instance, suppose you have residences in Florida and Pennsylvania, and you want to be treated as a resident of Florida for income tax purposes. At the same time, you want to be considered a non-resident of Pennsylvania. You might want to consider completing a Florida will because there might be a conflict of laws.
To establish another state as your domicile, you must establish a clear intent to remain in that state. Selling your old house and moving, changing your driver's license and canceling memberships in the old state qualify as intent (when combined).
There are several factors used to determine which state is your domicile. The state your attorney practices in and the address your estate plan lists isn't enough to claim an income tax domicile. For example, you can claim Florida as a domicile if you lived there for six months plus one day—but that isn't enough for a will from another state to be valid.
Your life would need to be affiliated with Florida as well. For example, if you still own a large house in Pennsylvania and your driver's license, social club affiliations, voter registration and estate plan are all from that state, you're not helping yourself establish Florida as a legal domicile.
Witnesses and Wording
The 50 states have varying requirements for witnesses. For example, can a beneficiary be a witness? It depends. Let’s say you made your will in a state where a beneficiary was a witness, and that was legal, but you die as a resident of a state where a beneficiary can’t be a witness.
What happens? Most states' law is that a will is valid if it is executed following the laws of the state where it is signed. This is called a “conflict of law” rule, and it is used to determine which state’s law applies for what purpose.
If the state where the decedent dies recognizes a will as valid if signed following the law of the state of execution, then the will would be valid even though the state in which the person died would not have recognized a will under its laws.
Disinheriting a Child
Some states require that if you wish to disinherit a child or any issue, you must expressly state your intention to disinherit them in the will or provide a nominal bequest—such as $1.00—to the person you wish to disinherit to make it clear that you have not simply forgotten them.
In legal terms, 'issue' refers to linear genetic descendants to avoid confusing 'children' with other possible heirs. Issue means any genetic descendant—children, grandchildren, great-grandchildren, etc. 'Children' means only a person's immediate children—sons or daughters.
On the other hand, some states do not require this. For example, if you make a will in Pennsylvania that leaves nothing to one of your children, that will is valid in Pennsylvania, and the disinherited child has no claim against your estate.
Suppose you pass away as a resident of a state where disinherited children have to be specifically mentioned and disinherited in the will. In that case, the state may not carry out your wishes. In Massachusetts, an omitted child might be entitled to receive the same amount that they would have received if you had died there.
Marriage or Divorce
In some states, a subsequent marriage revokes a will—in others, it doesn’t. A divorce revokes a will in some states; in others, it only revokes any benefits for the former spouse.
If you want to leave something to your ex-spouse, you should ensure your will is updated and valid in the state you're considering moving to. This is an example of a life change that would most likely require an updated will.
Other Common Issues
Other areas can cause problems in a will. You should ensure they are valid and recognized by other states when drafting your will:
- Asset Location
- Property Classification
One state might have signatures in a specific place on a will, while another has them in a different location. This can cause validation problems because the wording of the documents might place items in other sections.
If you move, the assets you leave to your beneficiaries might be in the state you moved from. It's essential to understand both states' laws so that there is no legal mess for beneficiaries to clean up.
Any property you leave should be classified correctly so that it is recognized by the state you're moving to. If you leave the family farm in Pennsylvania to your daughter, Pennsylvania might recognize it as a residential homestead, but Florida might classify it as agricultural land. The difference might trigger different taxes or hinder your ability to leave it to a specific person.
Regarding your will, it must be reviewed every time there is a significant life change. The circumstances must be evaluated by a competent trust and estate attorney to ensure that your wishes are supported in the state that you want them to be carried out in.