Out-of-state moves require a great deal of planning, but many people overlook one crucial aspect of the process—updating their estate plan. Different states have their own rules that may affect how a will is carried out, so it’s important to review your estate plan when you move.
A living will sets forth your wishes regarding how you are to be cared for in the event you are rendered incapable of making your own decisions. Also known as an advance medical directive, this document is usually drafted in a way specific to the state in which you reside. Once you move, it’s possible that your current living will won’t be accepted.
Even if it is, it’s a good idea to update your living will anyway since medical providers and other parties may have difficulty with another state’s format for this document. To ensure your wishes are carried out, it’s best to fill out a living will using your new home’s paperwork.
The rules governing who you can name as executor in your will vary from state to state. In nearly all cases, regardless of the restrictions, it’s in your best interest to name someone who is local since that will facilitate the process of managing your estate once you’re gone.
In Illinois, out-of-state executors are permitted, but the court may require them to post bond to make sure they attend hearings. In addition, the requirements the states places on executors include:
- They must be 18 years of age or older
- They are a resident of the United States
- They are of a sound mind (not deemed incapacitated in court)
- They are not considered disabled by the court
When moving, you will want to review this aspect of your will and choose someone who lives within the state if possible.
Common-Law vs. Community Property
Finally, the way marital property is handled in your estate may change when you move to another state. Most states, including Illinois, are common-law property states, which means property acquired by one member of a married couple belongs to that person alone unless they indicate otherwise. For instance, if the title of a car is in one person’s name, the car belongs to that person. It is not held jointly by the couple. On the other hand, if both names are on the title, then they both have an equal share of ownership.
Some states have community property laws, which means any property acquired during marriage is considered to be held jointly by the couple. Exceptions to this include:
- Property acquired by each spouse prior to marriage or after separating
- Property inherited by one spouse
- Property given to one spouse
The states which use community property laws include:
- New Mexico
If you are moving into Illinois from one of the above states, you’ll want to review your estate plan to account for changes in how marital property will be handled.
If you’re moving into Illinois from out of state, Hart David Carson, LLP, can help you bring your estate plan up to date. For more information, contact us today for a free consultation.