Malvern Estate Attorney Discusses Implications of Moving on Estate Plan
Having an estate plan is very important to making sure your estate passes smoothly, and with minimal taxes, to your heirs upon your death. However, you may not devote much time thinking about the plan once it is created, considering it has already been taken care of. If you move to a new state, though, you may need to revisit your estate plan as the move may necessitate some changes.
When you move to a new state, the first thing you should do is confirm that you have met all of the requirements for having a valid will in that state. If you are living in the state at the time of your death, the state’s probate process is generally going to apply by default and you want to make sure your will is valid in the state.
In most cases, this will not be a problem because wills are generally going to be considered valid and enforced in all states. Like wills, trusts should also be valid across state lines- but it is worth it to check. Most tax protection methods used should also continue to be valid since the majority of people who engage in estate planning for tax purposes are concerned about federal estate taxes.
The significant differences in your estate plan, however, may deal with issues such as whether your new or old state has the same rules on marital property and community property. If you are hoping to leave money to children or other heirs instead of a spouse, it is also important to determine if your new state has any restrictions or special rules on disinheriting a spouse.
Finally, the language used for power of attorney or healthcare power of attorney may differ in different locations. Failing to update this language may result in problems when the person given the power tries to exercise it.
Estate Planning and Marital Property Issues
For many people, the marital property issue is the most important estate planning issue to consider when moving to a new state. Certain states are referred to as “community property” states, which means that all property acquired during the marriage is considered to belong to the “community” made up of the two spouses. Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska.
In community property states, each spouse is generally considered to own one half of all property acquired during marriage, with a few limited exceptions such as when one of the two spouses inherits money or receives a gift and keeps it separate from marital property. In California, however, each spouse has an equal interest or share in all community property. Other states do not use community property rules but instead have separate property rules; ownership of property or assets acquired during the marriage is not automatically considered to belong to both spouses.
In community property states, each spouse can will his or her half of marital property to whomever he/she desires, unless a special agreement has been executed such as a community property agreement. There are different rules in shared property states including, in some cases, rules against disinheriting the spouse. There are also tax implications related to whether a state is a shared property or community property state, and whether assets are taxed as they transfer from one spouse to the other upon death.
A move from or to a state with different laws dictating whether property belongs to the community may have a significant impact on your estate. As such, it is important to speak with a Malvern estate attorney. If you are hoping to leave your assets to someone other than your spouse, this becomes even more important since this is not always permitted. Even when it is, different states may have different legal language that must be used to disinherit the spouse.
A final important consideration relates to living wills or powers of attorney. While these should generally be enforceable even if you move to a new state, different states may have different wording requirements. This means even if a power of attorney or health care proxy is enforceable, financial institutions or healthcare providers may not recognize it as valid. This can significantly complicate matters as courts may need to become involved in determining the validity of the power of attorney or healthcare proxy.
If you have taken the time to plan your estate to protect your assets and protect your heirs, it is important not to let a move to a new location thwart your efforts. Instead, if you have moved to the Malvern or surrounding area, contact a Malvern estate attorney for help. A Malvern estate attorney will understand the Pennsylvania laws dictating estate planning and help to ensure that your estate plan will be fully operative in the state of Pennsylvania.
For help with your estate planning, contact Unruh, Turner, Burke & Frees at (610) 933-8069.