By Robert J. Green, Esq.
People regularly move to Idaho from other states and bring with them wills, trusts, and power of attorney documents created in their prior state. Such people often ask me if their old estate planning documents are enforceable in Idaho. Generally, those documents are still valid in Idaho. However, there are some very important reasons to have estate planning documents from another state reviewed by an Idaho estate planning attorney. Let’s remind ourselves what each of these documents are and then consider some of the issues that create concern about out-of-state wills, trusts, and other estate planning documents.
A “Last Will and Testament” (“will”) is a document used to state what should happen to your possessions and assets when you die, as well as who should carry out those instructions you’ve left. Trusts come in many varieties, each with its own purpose. The most common type of trust used in estate planning is known as a “Revocable Living Trust”. A Revocable Living Trust is used to avoid the need for your estate to go through a court-controlled process called “Probate.”
Power of Attorney Documents typically state who your decision maker will be if you are alive, but unable to make your own decisions due to some sort of incapacity. These documents generally come in two categories – financial decision making and health care decision making. And, a “Living Will” is used to state what medical treatments you do or do not want administered to you if you are terminally ill and your death is imminent, or you are in what is called a “persistent vegetative state.”
Every state has its own laws concerning wills, trust, powers of attorney, advanced directives, estate taxes, and probate. These laws can have substantial differences. There may be formal requirements that some states require (but others do not) in order for such documents to be either valid, or in order for the documents to be used without the need for court involvement. Some documents may need to be witnessed and notarized in one state, but not in others. A document that does not meet your current state’s formality requirements may be “valid” but basically useless from a practical perspective.
If your documents specifically quote or cite to statutes (written laws) from your old state, those quotes or citations will not likely correspond to the statutes of your new state. Similarly, your old documents may specify that they be governed by and/or interpreted under the laws of your old state. That could mean that if an Idaho judge needs to interpret your documents, he or she may have to apply the laws of your old state instead of Idaho law. None of this is ideal insofar as it can cause confusion and ambiguity about the application of your documents.
Finally, if you have moved, you very likely no longer live near some of the people you have named in these important documents to fill certain roles (such as the “agent” or “attorney-in-fact” under your power of attorney document, or the “personal representative” or “executor/executrix” under your will). Are those still the people that you want doing those jobs? Can they effectively do those jobs from another state?
If you have any doubts about whether your documents are valid or will accomplish your wishes, do not hesitate to speak to a qualified estate planning attorney. Some law firms, like mine, will even offer free consultations concerning creating or reviewing estate planning documents. Take the time to be sure your planning will result in your desired outcome.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.