If properly drafted and executed, certain New York estate planning documents, such as a Last Will and Testament (“Will”) or a trust should be recognized outside of New York. For instance, if you sign a Will while present in New York and follow the proper formalities of a Will execution (e.g. at least two witnesses, etc.), that Will should be recognized even if you die while a resident of another state. Similarly, if you die while a resident of New York, having a valid Will prepared while you were a resident of another state, New York will recognize your Will.
While your Will or trust prepared in New York may be valid in other states, it is important to pay attention to the law governing those documents. Your Will or trust may be recognized by a state other than New York, but if the Will or trust provides that New York law governs, there may be unintended consequences. This is especially important for trusts. When drafting trusts, we provide mechanisms for the trustee to change the situs and governing law of the trust. This gives the trustee a good deal of flexibility to adapt to changes.
In some cases, our clients are certain that they will move to another state in the near term yet choose to proceed with the drafting of their estate planning documents here in New York. In those cases, we may suggest co-counseling with an attorney in the other state to comment on the documents as if the laws of that jurisdiction applied.
If you move out of New York, you should have your documents reviewed by an elder law attorney in your new state of residence. From a practical perspective, a bank may not accept a New York Power of Attorney or a physician may not accept a Health Care Proxy, simply because they are not familiar with the New York form. While your documents may be portable, we recommend that certain documents, such as a power of attorney and health care proxy be re-drafted to conform with the forms and laws of your resident state to avoid these practical dilemmas.