Published in the Union Leader
Q: My husband and I had wills drawn up when we were working and living in Massachusetts. The wills list us as residents of Massachusetts. We have since retired and moved to live permanently in New Hampshire. Will the MA address on the wills cause any delay or problems for the executor of our estates upon our deaths?
Generally speaking, an estate plan (collectively a will, health care advance directive, financial power of attorney, and a trust) validly executed in another state (a “foreign plan”) is valid here. However, there may be good reasons to modify a foreign plan after a move or at the very least have an attorney review it.
Having a valid estate plan does not cure all issues created by a move. Validity merely ensures enforcement. Validity does not ensure your intentions are fulfilled. The law varies state to state. Upon moving to this state, the terms of a foreign plan are interpreted under New Hampshire law and not the law where the plan was written. This can result in unintended consequences.
For instance, the source of the payment of the decedent’s debts and expenses is treated differently state to state. This can affect the size or amount of an inheritance or bequest given under the terms of a will. Of course this result can be adjusted by modifying the terms of the will after a move.
A foreign will requires an extra step in the probate process before the court accepts the will. The probate court mandates that an attorney licensed in the state where the foreign will was made sign an “Affidavit of Counsel” that the foreign will is valid under such other state’s laws.
A validly executed foreign power of attorney and foreign health care advance directive are also valid under New Hampshire law. However, similar to the will, there may be situations where not having a New Hampshire “form” of the document could result in unnecessary delays or other problems. The New Hampshire health care advance directive form is particular. You grant end of life decision making powers in a very specific manner to your agent. It is unlikely that a health care power made outside of New Hampshire will include the specific language. In the event of a controversy over what your end of life wishes are, not having the specific New Hampshire language could make it difficult for the agent to be able to make end of life decisions, without court involvement.
Having a New Hampshire attorney review your estate plan ensures your intentions are carried out efficiently and effectively.
Denis Dillon can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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