While it may be beneficial to use an out-of-state attorney to write your will if you have assets in multiple states, it is important to consider the potential legal implications.
An out-of-state attorney can legally write your will; however, the attorney should be familiar with your state’s laws.
Each state has its own laws regarding the requirements for a valid will, such as the number of witnesses needed. If you use an out-of-state lawyer who drafts your will incorrectly, the will could be invalid in court.
This article will explore whether an out-of-state attorney can legally write your will and the potential risks and benefits of doing so.
Key Takeaways
It is legal for an out-of-state attorney to write a will, but they should be familiar with the laws of the state where the will is to be executed.
It is generally recommended to update your will if you move to a new state. Each state has its own requirements for a valid will, and your current will may not comply with the laws of your new state.
If you update your will without a lawyer, there are risks involved. Failing to follow the correct process for creating a valid will in your jurisdiction may result in your will being contested.
Pros and Cons of Using an Out-of-State Lawyer to Write a Will
There are several pros and cons of using an out-of-state lawyer to write your will, and we will go over each of them individually below:
Pros
Specialized expertise: An out-of-state lawyer may have expertise in estate planning or tax laws that are relevant to your situation.
For example, a lawyer in Florida may have more expertise in including yachts or beach houses in your estate plan.
Assets in multiple states: If you have assets in multiple states, an out-of-state lawyer may be more equipped to handle the legal requirements for each state.
Cost-efficiency: An out-of-state lawyer may be more affordable than a lawyer in your state.
For example, states like California, New York, and Massachusetts have some of the highest legal fees in the country due to the high cost of living in those states.
Cons
Familiarity with state laws: An out-of-state lawyer may not be as familiar with the laws of the state where your will is to be executed, which could lead to errors or omissions in the document.
If an out-of-state lawyer makes a mistake when drafting your will, your will could be invalidated in court.
This could lead to a delay in the distribution of your assets to your beneficiaries.
Or, in the worst-case scenario, your entire estate could be subjected to the probate process, where the state government will decide who gets your assets upon your death.
Difficulty meeting in person: Lawyers are notoriously busy, and a lawyer who lives in another state may not be able to meet with you in person to truly understand the nuances of your case.
Court proceedings: If there are any legal disputes over your will, the court proceedings will likely take place in the state where you reside, and if the out-of-state lawyer is not licensed to practice law in your state, they won’t be able to represent you in any court proceedings concerning your will.
This puts you at a serious disadvantage if your will is contested or invalidated.
Do I Need a New Will if I Move to Another State?
It is generally recommended to update your will if you move to another state.
This is because each state has its own laws regarding the requirements for a valid will, and your current will may not comply with the laws of your new state of residence.
Additionally, you may want to make changes to your will to reflect your new circumstances and assets, such as a house or property in a new state.
Failing to include your new assets in a different state means those assets could be subjected to probate in that state, and the state government will decide what happens to them after you pass away.
Can a Will Be Probated in Another State?
Generally, a will can be probated in another state.
When a will needs to be probated in a different state, it's often referred to as an ancillary probate. Ancillary probate may be necessary in cases where the decedent owned property or other assets in a state other than their state of residence.
In such situations, the will is usually first probated in the state where the decedent resided (the "domiciliary state") and then in the state where the additional property is located (the "non-domiciliary state").
To start the ancillary probate process, the executor of the decedent's estate needs to:
Obtain authenticated copies of the probate documents from the domiciliary state.
File a petition for ancillary probate in the non-domiciliary state where the additional property is located.
Comply with the probate laws and procedures of the non-domiciliary state.
The ancillary probate process can be time-consuming and expensive due to the need to comply with multiple state laws and court procedures.
For this reason, some people choose to avoid ancillary probate by creating a trust to facilitate the transfer of out-of-state property without the need for probate.
For example, using a revocable living trust can help bypass the need for ancillary probate.
By placing out-of-state property into a trust, the property is controlled by the trustee and not subject to probate when the trust creator passes away. This can save time and money and simplify the estate administration process.
Another option is joint ownership with rights of survivorship. When a property is jointly owned with rights of survivorship, the surviving owner automatically inherits the decedent's share without the need for probate.
One more option is the use of a transfer-on-death (TOD) deed. With a TOD deed, the property owner designates a beneficiary who will inherit the property upon the owner's death. The property is then transferred directly to the beneficiary without going through probate.
What Happens if My Will Has the Wrong Address?
If your will has the wrong address, it may not necessarily invalidate the entire document, but it could cause confusion and delay in the probate process.
The probate court will need to know where to send notices and documents related to the probate case. If the address on the will is incorrect, it could slow down the process and make it more difficult for the court to locate the beneficiaries and other interested parties.
In most jurisdictions, the critical elements for a valid will include:
The testator's intent to create a will
The testator being of legal age (usually 18) and having the mental capacity to create a will
The will being in writing and signed by the testator
The will being witnessed and signed by the required number of competent witnesses (usually two)
If your will meets these requirements, a wrong address is unlikely to invalidate the document.
However, it is still a good idea to correct the error to avoid any confusion or potential challenges during the probate process.
You can update your will by creating a new one with the correct information or executing a codicil (a legal amendment) to the existing will, specifying the change of address.
Can I Update My Will Without a Lawyer?
It is possible to update your will without a lawyer, but doing so comes with some risks.
If you choose to update your will without legal assistance, failing to follow the correct formalities and legal requirements for creating a valid will in your jurisdiction may result in your will being contested or considered invalid.
There are two common methods for updating a will:
Drafting a new will. If you have significant changes to make or if your existing will is outdated, you might consider creating a new will that supersedes the old one. The new will should include a clause explicitly revoking all previous wills.
Creating a codicil. A codicil is a separate document that amends specific provisions of an existing will without revoking the entire will. It must be executed with the same formalities as the original will, such as being signed and witnessed.
If you decide to update your will without a lawyer, you should research your state's laws and requirements for creating a valid will or codicil.
Some things for you to consider:
The testator must be of legal age (usually 18) and have the mental capacity to create a will or codicil.
The will or codicil must be in writing and signed by the testator.
The will or codicil must be witnessed and signed by the required number of competent witnesses (usually two).
Does It Cost More to Have an Out-of-State Attorney Write My Will?
It may cost more to have an out-of-state attorney write your will, as they may charge higher fees than an attorney in your state of residence.
An out-of-state attorney may not be as familiar with the laws and regulations of your state and may need to spend more time researching and consulting with colleagues to ensure that your will is valid and compliant with state laws.
If an out-of-state attorney has to travel to your state to meet with you or to attend court proceedings, this may also add to the cost of their services.
However, the cost of an attorney mostly depends on their level of experience, their reputation, and the complexity of your case. It’s always a good idea to get quotes from multiple attorneys before deciding which one to hire.
Can a Will Be Notarized in a Different State?
In general, a will can be notarized in a different state than the one where the testator resides. However, notarization is not a requirement for a will to be valid in most states.
Typically, a will must be in writing, signed by the testator, and witnessed by a specific number of competent witnesses (usually two) to be valid. The requirements for a valid are different in every state, so do some research to get familiar with your state's specific laws and regulations.
That being said, some people choose to have their will notarized as an additional measure to verify their identity and signature, which may help settle disputes or challenges during the probate process.
A notarized will may also be considered "self-proving" in some states, which can simplify the probate process by allowing the court to accept the will without requiring the witnesses to testify in court.
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