Lyndon B. Johnson once said that our country is “Not merely a nation but a nation of nations.” Perhaps that is never more clearly noted as when you move from one state to another. The geographic and historical differences of the various states and their peoples shape their individual laws. But one difficulty with that diversity is that there is not one shared body of law with regard to Wills or property descent and distribution upon one’s death (or with regard to anything else, for that matter). Every state has its own laws governing what it takes to have a valid Will, with a myriad of combinations of requirements regarding signatures, witnesses, notaries, self-proving affidavits, and even the testator’s own handwriting. Some states also impose their own estate or inheritance tax, which informs the terms of their citizens’ wills. So Wills vary greatly from state to state.
What Is the Full Faith and Credit Clause?
There is some consolation in the US Constitution’s “Full Faith and Credit” clause, which provides that a valid Will in one state must be recognized in other states. However, that doesn’t solve the problems presented with a “foreign” (out-of-state) Will. For one thing, when the Will is probated (proved in court to be valid), an attorney will have to prove to a court (a) what the law was in the foreign state at the time of making the Will, which could be many years ago, and (b) that the foreign Will complied with that law. Obviously, that adds some time and expense to the probate of the Will, and introduces a possibility of error on the part of the attorney or an unfavorable judgment on the part of the judge.
Additionally, certain terms of foreign Wills may not be enforced as intended in the new state. For example, Texas homestead protections for spouses may prevent a testator (the person making the Will) from distributing a home to others as initially desired. Texas community property laws could also change intended distributions, even if you came from another community property state. Some states have automatic inheritance of marital property by a surviving spouse, which is not the case in Texas. So reliance on your Will from a prior state of residence should only be done if there is absolutely no way to execute a new Will in the new state, due to incapacity or emergency.
How To Write A Will In Texas
I know you don’t want to undertake the process and expense of drafting a new Will now that you’re here in Texas, but there are a lot of benefits to doing so. Texas has a much more user-friendly probate system than many states, so you may not need the complicated revocable living trust that you had in your previous home. Our probate system allows for an “independent administration” on an estate, which greatly reduces court involvement. A properly drafted Will allows the executor (the person charged with handling the estate) to deal with creditors, gather assets, pay expenses, sell property, and make distributions without court oversight. And, if drafted correctly, he or she can do this without having to post a bond. You can imagine the time and cost savings with such an administration.
Nor does Texas have its own estate or inheritance tax, so you may not need the state tax planning embedded in your current Will or trust. As an additional bonus, if you move from a state which has an estate or inheritance tax, having a Texas Will could bolster your executor’s argument that you were domiciled in Texas when you died and therefore are not subject to the previous state’s estate tax. (Official domicile is based on many factors, so talk to a lawyer about this.)
Most states provide for the use of a self-proving affidavit as part of the Will. Without a self-proving affidavit, the Will’s original witnesses must testify in court to prove the validity of the Will. This can be a problem if the witnesses are deceased or cannot be located. The self-proving affidavit essentially makes this testimony on behalf of the witnesses, so there’s no need for them to come to court. However, if there is a problem with proving up a foreign state’s affidavit in court, the affidavit could be thrown out, and the Will’s witnesses will have to be located. We can avoid this potential difficulty by making sure the Texas form of self-proving affidavit is used and attached to the Will.
So do you need an attorney to make changes to your foreign Will? Unfortunately, you cannot just mark up a current Will; those changes will not be recognized as legal. Online forms are available, but you run the risk that the provided form is not properly updated, or, even if it reflects current law, does not incorporate some terms that are considered preferred best practices when drafting Wills. More importantly, an online form does not provide you with the expert analysis of your estate which could bring to your attention something that you didn’t even know was an issue. Not to mention the fact that people often make unintended mistakes in their online Wills because they simply don’t understand fully the terminology or how estates pass.
Having a “foreign” Will is better than having no Will at all, but it is certainly not ideal. Considering all that could go wrong, your best bet is to update your Will to one that is recognized and fully functional in your new home state.
Talk to an experienced attorney at Hammerle Finley Law Firm to review your estate and have Texas documents drawn up. Your family and friends will thank you for it.