When parents move to a new state, are their wills and trusts valid in the new state?

2 answers | Last updated: Aug 01, 2017
Mkdallas asked...

My parents moved to the state of Texas from Illinois 10 months ago. Are the trusts and wills that they wrote in Illinois good in the state of Texas?

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

A will or trust valid in one state is, broadly speaking, valid in all. But there is a big difference in laws that control how married couples own property. In community property states, they share most property, but are free to leave their own half by will or trust. In states that follow the common law system, the name on the title of the property generally controls, but each spouse usually has a legal right to claim at least some portion of the other spouse's property at death.

So you have hit upon one of the few areas in which problems or complications can arise: when a married couple makes these documents in a common law state (Illinois) and then moves to a community property state (Texas).

Complications can sometimes arise in these situations because the property each spouse owns, and so is free to give away by will, may be different in these two states.

In reality, these technical ownership rules probably won't matter much if your mom and dad plan to leave all or most of their property to one another, or if they both heartily approve of the way the property is left. But it is still a good idea in their situation to have the documents reviewed.

Community Answers

Geo2015 answered...

Of course, Miss Repa is right, a brief conference with a new lawyer in Texas would be a very good idea, just to clarify who would inherit what and how… As well as how the will and/or trust drawn up in a common law state (Illinois) will affect each spouse upon a move to a community property state (Texas) – when one of them passes away. And of course how that will play out when it comes time for you to inherit those assets, if that is affected in any way... probably not, but it doesn’t hurt to double check, just to be sure.

Estate law is a funny thing… and you never know. I would want to know with absolute certainty how things are bound to play out for my parents… especially if there are some serious assets to be concerned about. And tell you the truth, projecting forward, which a lot of heirs find very distasteful, I’d wonder if any of those common law issues versus community property laws would affect me, as an heir, when it came time for the estate to go through probate, let’s say, and I was in a position to inherit whatever it was I was inheriting.

If, for example, I had siblings and one of them dies along the way, or there were second marriages or divorces in the mix, complicating things. Or if one parent passed away and the other parent got married again… how would that new step-dad or step-mom enter into the financial estate equation. Or if a sibling dies in the meantime and had children. Or, if when both parents passed, the estate went through probate and I had a cash flow problem at that time – if I would be able to get a normal loan against inheritance from one of the better known inheritance advance, inheritance cash advance, or inheritance loan companies like www.heiradvance.com, or www.inheritancenow.com, or maybe www.inheritanceadvance.com, probate loans companies that have been around for years; after looking carefully into inheritance loan fees and inheritance advance rates… if I could borrow normally against my inheritance with an inheritance cash advance, probate loan, estate loan, probate advance or inheritance advance. Even if I knew what I was doing… and thoroughly researched inheritance loans, probate loans, estate loans, various inheritance advance or probate cash advance, or inheritance cash advance options… I’d really want to know if things could proceed normally – or would those common law to community property issues affect my ability to get an inheritance advance, probate advance, or inheritance loan.

Even if we think we know… we really don’t know any of this for sure until we sit down with an experienced estate lawyer, and he or she looks at the paperwork, and examines all the issues.