Advice for Snowbirds and Those with Out-of-State Wills

As the allure of warmer climates and picturesque destinations beckons, many individuals find themselves splitting their time between different states or even residing permanently in a different state from where their Will was originally drafted. There are many key considerations, potential pitfalls, and first-rate strategies available to help you safeguard your legacy, no matter where life takes you.

As a starting principle, the “full faith and credit” clause of the United States Constitution requires each state to respect and honor the laws of other states. Accordingly, in general, if a Will was validly executed under the laws of another state, it will be enforceable under New York law. 

However, New York Estates, Powers & Trusts Law §3-5.1(c) imposes certain important limitations on this general principal such that not every Will, even if validly executed under the legal requirements of another state, will be honored in New York state. 

New York Estates, Powers & Trusts Law (EPTL) §3-5.1(c) provides that a written Will signed by the testator and validly executed under the laws of the jurisdiction where executed is entitled to be admitted to probate in New York even though the Will had not been executed with the formalities required by New York law. In New York, a Will must be executed in compliance with EPTL § 3-2.1 which requires that the Will is in writing and is signed by the Testator in the presence of two attesting witnesses who must both attest the Testator’s signature and, at the request of the Testator, sign their names and affix their residence addresses at the end of the Will within 30 days.

Consequently, if an out-of-state Will fails to satisfy New York’s execution requirements, but otherwise meets the legal requirements of that state, the Will would likely be enforceable in New York, provided the Will is in writing and signed by the testator pursuant to EPTL §3-5.1(c). 

However, the case law in this area is highly complex and certain bequests found in out-of-state Wills have been invalidated by New York courts even though such bequests may have been valid under the laws of the jurisdiction in which the Will was executed. For this reason, it is crucial that you have an experienced elder law and estate planning attorney review your out-of-state Will to determine whether and to what extent it will be legally enforceable in New York.

Frequently Asked Questions About Out-of-State Wills 

When it comes to out-of-state Wills there are many questions that may arise. Below you will find the answers to two of those common questions our Long Island Elder Law attorneys get asked. 

I signed a Will in New York 10 years ago. If I move to Florida, must I sign a new Will?

Your Will, if properly executed in accordance with New York law, will likely hold up to scrutiny by the Florida courts. Proper execution in New York means that you had the capacity to make a Will and observed all the formalities of EPTL § 3-2.1 that New York Courts require. If so, your Will is likely to be found valid in Florida as well. 

As mentioned above, a legally valid Will in New York must be signed by the Testator in the presence of two attesting witnesses who must both attest the Testator’s signature and, at the request of the Testator, sign their names and affix their residence addresses at the end of the Will within 30 days. In addition, the Testator must “declare” to each of the attesting witnesses that the document is in fact his or her Last Will and Testament.

Most Wills contain an Attestation Clause which the witnesses sign to indicate that the Testator is not signing the Will under duress, is over the age of eighteen (18), and is of sound mind. The Attestation Clause facilitates probate as it is difficult to dispute the validity of a Will so executed. 

However, keep in mind that there may be certain essential requirements that, if absent, may invalidate such a Will in Florida, hence the importance of having your Will reviewed by an attorney.

What Will Happen to the Bank Accounts and Real Estate I Left in New York?

If your only assets in New York were bank accounts (and not any real estate), only Florida Probate would be necessary as your Florida Executor, once officially appointed, could collect out-of-state bank accounts. However, if you had real estate in New York, your Executor would need to probate the Will in Florida and then request an ancillary proceeding in New York to gain jurisdiction over the New York real estate.

This means that separate filing fees will have to be paid for both the Florida probate proceeding and New York ancillary proceeding, not to mention additional court filings and petitions necessary for the ancillary proceeding.  If you prefer that your Will be probated in New York, under New York laws, you may state so in your Will. The court is not forced to adopt your wishes, but generally your wishes carry great weight.

General Estate Planning Advice for “Snowbirds:”

• Have your out-of-state Will reviewed by an elder law and estate planning attorney to ensure that the Will is legally enforceable in New York or other states. 
• Keep careful records of your assets and let your attorney and fiduciary know where the assets are located, as well as the name(s) of the title holder(s).
• Do not keep your Will in your safe deposit box at the bank. The proper place for a Will is in your lawyer’s office.
• Do not make any hand-written notations on your Will.
• Do not un-staple or separate the pages of your Will for any reason.

Have Additional Questions About Out-of-State Wills? Cona Elder Law Can Assist! 

The attorneys at Cona Elder Law are experienced and ready to help you ensure you have your documents in order when it comes to your out-of-state Will. If you have an out-of-state Will matter you’d like to discuss further, don’t hesitate to contact Cona Elder Law today for assistance.