I have written before that a move to another state can trigger a need to update your will. It’s not necessarily because the move invalidates the will. Generally, a will signed in accordance with the laws of one state would remain valid if you move to Texas.
So why is it important to have your will updated? Because Texas has unique procedures and laws that can simplify probate and can affect the distribution of your estate. Below are a couple of the reasons it’s advantageous to have your will updated when you move to Texas.
Texas allows a testator to request an independent administration, when the testator provides in his or her will that there should be no action in the probate court in the settlement of the estate other than the probating and recording the will and the return of an inventory, appraisement, and the list of claims of his estate or an affidavit in lieu of an inventory. Independent administrations usually involve only one court hearing and the filing of an inventory or an affidavit in lieu thereof and greatly simplifies the probate process.
Additionally, Texas wills can include a self-proving affidavit. The self-proving affidavit affirms that that the will was properly signed by the testator in the presence of two witnesses, who observed the testator sign his will and heard him say that it was his last will and testament. The benefit of a self-proving affidavit is that it eliminates the need for witnesses to appear in a probate proceeding to testify about the validity of a will, which saves time and expense.
Distribution of Property
Texas is one of nine community property states. In Texas, property acquired before a marriage and ruing the marriage by gift, devise or descent is separate property, while property acquired during marriage is presumed to be community property, except of acquired by gift, devise or descent, unless you agree otherwise.
The rules in common law states are different. In those states, there no rule that property acquired during the marriage belongs to both spouses. For example, if you purchased an investment property in common law property state while you were married and only your name is on the title that property would be yours alone. However, if you bought property in Texas while you were married, that property would be presumed to belong to the community regardless of whose name is on the title.
So what happens if you move from a common law property state to Texas? All property acquired while living in your common law property state will classified as separate property or community property, according to the character it would have been assigned if you had lived in Texas when you had acquired it.
Items that may have been your property alone in a common law property state might now be classified as community property when you move to Texas. That will affect the way it can be disposed of at your death since you can only dispose of your separate property and your share of your community property. Updating your plan can allow you to consider converting community property to separate property, a procedure allowed in Texas if both spouses agree.
While the Will you made in another state may be valid in Texas, it is not likely to be as effective. Having a Will tailored to this state’s laws will ensure that your estate is handled in the most expeditious manner and your property is distributed according to your wishes.
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