Is Your Estate Plan Valid If You Move?

If you move your legal residence, must you change your estate plan?

Americans move an average of 12 times in their lifetimes and as frequently as once every five years. Does your estate plan move with you?

As with all legal issues, the answer to that question is unnecessarily complicated. However, the solution can be simple if you know what to do.  Let’s unpack that solution.

Will Estate Plan for Illinois Residents

A valid Illinois Last Will and Testament requires the following: the person signing is 18 years or older and of “sound mind and memory.” Additionally, two or more credible people witness the signing of the document. The witnesses should not be beneficiaries or family members. It is a requirement to file the Will in the Circuit Court Clerk within 30 days of the decedent’s death.

In Illinois, a Will does not require a notary. However, Illinois and several other states allow the admission of a notarized Will to Probate without witness testimony. Therefore, all my client’s Wills are notarized—more on that out-of-state requirement below.

Living Trust Estate Plan for Illinois Residents

Since a Will is subject to Probate Court, it is not your ideal estate plan. Rather, you should have a Living Trust as your primary estate plan.

To be valid in Illinois, surprisingly, a Living Trust does not need to be witnessed or notarized. However, it is not a wise practice. The Illinois Trust Code requires that the Trust creator intends to create a Trust, has legal capacity, and names a beneficiary who is not the creator.

Regardless of the legal requirements of creation and signing, you will be funding your Trust with financial institution accounts with their Trust requirements. A notary is almost always one of them.  Additionally, other states require witnesses and a notary for a Living Trust. Therefore, all my clients are provided with a notary and two independent witnesses.  

Moving with your Estate Plan

Now that we understand how to validly create and sign a Living Trust or a Will in Illinois, what happens when you move?

If your new residence is in Illinois, your validly signed estate plan is still valid regardless of the new county. If the estate plan is a Will, it is filed at your death with the court in the county of your residence at the time of your death.

When moving to another state other than Illinois, the general rule is that a Living Trust is valid in your new state if its creation complies with the jurisdiction’s laws where the Trust was executed. The same holds if you move to Illinois from another state.

You should not, however, rely on “general rules.” There is every reason to do more than the minimum regarding your estate plan.

You will deal with new financial institutions, notaries, and witness requirements in your new state. Additionally, the laws may differ regarding where and how you sign your estate plan documents and the consequences of a new marital status.

Consequently, your estate plan should always be carefully drafted by your Illinois lawyer and have two witnesses and a notary, with a review by an attorney in your new state. Your previous estate plan is valid if properly drafted, executed, and reviewed.

Living Trusts

At the end of your life or incapacitation, they risk Probate if you have property, investments, or bank accounts in your name.

• A Will = Probate. The rule is that no one can legally sign your name. Therefore, all assets in your name are subject to the Probate process, which averages 18 months and is costly.
• A Living Trust avoids Probate.
• Your financial accounts, life insurance policies, and deferred compensation accounts can name your Living Trust as beneficiary, subject to essential tax considerations.
• A Living Trust estate plan includes Health Care and Financial Power of Attorney documents. It also consists of a Last Will and Testament.
• A Will is necessary for the guardianship of minor children. It also transfers assets in your name out of Probate.
• A Living Trust contains a No Contest provision and beneficiary Asset Protection clauses.

Police Benefits Plan

For an expanded presentation of asset protection strategies, marketplace police discounts on products and services, and regular updates on strategies to protect what you have earned, visit and register with the Police Benefits Plan. Registration for police, retirees, and families is free.

Contact us today for further information or visit Police Benefits Plans now.

Tom Tuohy founded Tuohy Law Offices and the Police Benefits Plan. He has been a police lawyer for over three decades. His father was a CPD detective, and his grandfather was the CPD Chief of Major Investigations. You can reach Tom at 312-559-8400 or in his Oakbrook Terrace offices.

Police Benefits Plan

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