Christopher Yugo Times Columnist
Q: We moved to Indiana from Illinois a few years ago. We have an estate plan but it was executed in Illinois. Are the will and other documents valid in Indiana? Should we have new documents created?
A: Estate planning is state specific. Sure, there are federal laws that can affect estate plans, such as the IRS code and ERISA. However, for the most part state law establishes the requirements for creating an estate plan.
Fortunately, Indiana, and a lot of other states too, recognize that people move around and, in addition to their personal belongings, they often move with their estate plan. With that in mind, a lot of states, including Indiana, have laws that allow wills that were validly created in another state to be probated in the current state. In your case, if the will was validly executed in Illinois, it can be admitted to probate in Indiana.
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However, I still think that it is a good idea to have it reviewed by an Indiana attorney. Probate laws are unique to each state and what makes sense in one state may not make sense in Indiana. The will may be probate-able, but that doesn't mean that the will isn't missing something important. Admitting the will into probate is only half of the battle.
Also, you indicated that you have an estate plan, not just a will. That suggests to me that you have other documents such as powers of attorney and health care representative designations. All of those documents should be reviewed to make sure that they meet Indiana's requirements and to make sure that all of your bases were covered. They're probably fine, but it can't hurt to have them looked at just in case.
I recently reviewed an estate plan executed in another state that was filled with references to that state's code sections. All of that stuff needed to be addressed. In most cases, the offending language was removed or changed to reflect Indiana law. An easy fix, but an important one.
When I prepare an estate plan for someone and they ask me about taking it out of state, I always suggest that it be reviewed by an attorney in that jurisdiction. This is especially true if the plan is traveling out west where it may encounter community property. Community property is a whole different critter than we find in Indiana.
Just because a state will allow your family to probate a foreign will doesn't mean that there won't be problems. Things will probably be OK, but it's best to spend a few bucks just be sure.
Christopher W. Yugo is an attorney in Crown Point. Chris' Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to [email protected]. Chris' information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.
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