People move around a lot these days. I am often asked about whether an estate plan created in a different state will still work after a move, or if an estate plan applies to property owned in another state. The answer is–it depends!

First and foremost, a will or trust that is validly drafted in one state is valid in another state under the “full faith and credit” clause of the U.S. Constitution. However, states have different requirements for valid estate plan documents and take different approaches to interpreting these documents. Here are some important things to consider if you are moving to a new state or own property in different states.

 

Different Laws: Uniform Probate and Trust Code vs. Common Law

As of 2021, only seventeen states have adopted uniform laws for probate and trust administrations. Massachusetts (MA) is one of them, Rhode Island (RI) is not. It is important to know whether your estate plan was created in a uniform state, or somewhere else. Some states have requirements that are more lenient than others.  For instance, about half of the states recognize a hand-written will, called a “holographic will”, as valid. Many states do not consider these documents to be valid wills, including RI and MA. Turns out that Michigan is one of the more lenient states, for example, some handwritten notes found stuffed in the cushions of Aretha Franklin’s couch were found to be a valid will under Michigan law.

 

Different spousal rights: community property vs. non-community property

If you are married and created your estate plan in a community property state (AZ, CA, ID, LA, NV, NM, TX, WA, WI), your spouse is entitled to essentially 100% of the marital assets. Many non-community property states allow a spousal elective share, which means a surviving spouse may force a share of your estate even if you disinherit them.

 

States that impose an estate tax: (a/k/a “The Death Tax”)

The federal government imposes a tax on estates that are over $13.61 million dollars per individual, as of 2024. This tax does not apply to most people! However, seventeen states and the District of Columbia impose an estate tax with a much lower exemption amount, including MA ($2 million per individual) and RI ($1.7 million per individual). If you created a plan in a state that does not impose a death tax, you may need to add some tax planning to your estate plan to minimize the taxes on your estate.

 

 

Formal vs. Informal probate

Many states have a simplified probate process for smaller estates. However, the asset limits differ from state to state. For instance, California allows an informal probate to be filed if the assets are less than $184,500.  Massachusetts allows a short form probate to be filed on estates with $25,000 or less in assets. Rhode Island, however, has a very low threshold of only $15,000. The majority of these small probate processes apply only to personal property and not to real estate.

 

 

 

Owning property in other states

You likely do not have to create a separate estate plan to address assets you own in another state. For instance, if you create a living trust in Rhode Island, you can transfer your Rhode Island home and your Florida condo into the Rhode Island trust. However, if you own a vacation home in Portugal, you will have to consult with an attorney in that country to ensure your asset is protected.

Whether or not any of these circumstances apply to you, it is best to have your estate plan reviewed by an attorney in the state where you reside. Moreover, it is important for you to update your plan when your circumstances change.

 

Talk to an experienced estate planning attorney to make sure you’re protecting your assets the right way

Whether you live in Massachusetts or Rhode Island, or you’re planning to move, it’s a smart idea to consult with an estate planning attorney to get your assets in order and your family protected.  Contact the law offices of Jill M. Santiago by clicking the link below.