The laws of each state vary in the formalities and requirements needed to create a valid estate planning document. This is not to say that all out-of-state documents are necessarily void upon moving to California, however there are several important principles to consider when determining if changes are necessary.
First, it is important to understand the originating state’s laws with regarding to signatures and witnesses. Under Section 6110 of the California Probate Code, a will must be signed by the testator and two witnesses. The witnesses must sign at the same time as the testator, and must actually witness his or her placement of a signature on the document. While many states maintain a similar regimen, others may only require one witness, which does not comply with California law. While the out-of-state will may not necessarily be void in California, a document with vastly different formalities may create an issue when it comes time to administer the estate upon the death of the testator. Oftentimes, it is easier to avoid this confusion by creating a new will under California’s Probate Code.
With regard to ancillary estate planning documents, it may be necessary to consider drafting a new set in order to ensure maximum enforceability. An advance directive/living will, for instance, must contain certain language to ensure it is enforceable by medical staff when necessary. If the directive is from another state or was completed using an internet form, it may not contain the requisite language needed to effectively ensure the creator’s wishes are upheld. The same is true for a durable power of attorney for finances, which is explicitly dictated by the terms of Sections 4120-4130 of the Probate Code.
Lastly, it is important to update one’s estate planning documents regularly, particularly as the family grows and changes. If moving to California coincides with retirement, for instance, it may be time to revisit the estate plan anyways — making it the perfect time to draft a new set of California-compliant documents.