So you have your will, financial power of attorney and health care power of attorney and maybe a trust that was prepared in Michigan and you plan on moving out of state. Or you just moved to Michigan from another state and your estate planning documents were prepared when you were a resident of another state.
Are your estate planning documents still going to be valid in your new state of residence? The answer is maybe. Generally, under Article Four of the United States Constitution, every state shall give full faith and credit to the laws of every other state. This means that so long as they are not contrary to Michigan law, documents that were completed in another state, are generally valid in Michigan and vice versa.
This is especially true with contracts. If you have signed a contract in Michigan that is governed by Michigan law, that contract is generally effective in any state and could still be governed by Michigan law.
One type of a contract is your living trust. Trusts are generally completely portable throughout the entire United States. You can choose which state law governs your trust. You can have a trust governed by Michigan law in any state of the Union. You can move to any state and not have to change your trust.
However, your other estate planning documents, such as your wills or financial or health care powers of attorney are generally not governed by contract law. These documents are generally going to be governed by the laws of your state of residence or the laws of the state in which you are located when you are trying to enforce them. Most states have specific statutes governing wills and durable powers of attorney for health care. Whereas financial powers of attorney are usually governed by a state’s laws of agency.
Most states have laws similar to Michigan for these documents, but there are differences between states. For example, in Michigan you can have a self-proving will. If you have certain affidavits signed by the willmaker and the witnesses, the will is deemed to be a self-proved will. Other states may not have similar provisions. Wills prepared in another state may not qualify as a self-proved will in Michigan.
Similarily, with health care powers of attorney, I had a client in Florida several years ago who had a Michigan durable power of attorney for health care. In Michigan, life support can be removed upon determination by the patient advocate that the burdens of treatment outweigh the benefits. However, in Florida, life support could not be removed with this subjective standard. Life support could only be removed in a medically diagnosable standard such as in the event of an irreversible coma, persistant vegetative state or a terminal illness where artifical means only prolong the dying process. If you are in that situation, you would need to be transported out of Florida in order to remove life support.
You want to make sure that your wishes are going to be followed so that you can stay in control of your property while you are alive and well, you can provide for you and your loved ones in the event of your mental disability, and when you are gone, give what you have to whom you want, the way you want, when you want.
If you have moved from another state and have estate planning documents that were prepared in your old state, there may be portions of your documents that are unenforceable in your new state. Whenever you move to a new state, at a minimum you should have your old estate planning documents reviewed to make sure they comply with the laws of your new state. Better yet and often times more ecomonical, you could have new estate planning documents prepared by an attorney in your new state.
By: Matthew M. Wallace, CPA JD
Published edited April 26, 2009 in The Times Herald newspaper, Port Huron, Michigan as: Check document validity if moving