State-Specific Guidance

Robert and Linda Anderson lived in Minnesota for 38 years. They raised three children there. They built careers there. They drafted their wills, durable powers of attorney, and healthcare directives there — twice, in 1998 and again in 2014, with the same Minnesota estate planning attorney. In late 2022, after Robert retired, they moved to Florida. They sold the Minnesota house, bought a smaller home in Naples, and started a new chapter. They did NOT update their estate plan. Why would they? The documents were only 8 years old. They were valid. They were signed, witnessed, and notarized. The will was a will, no matter what state you were in. Right? In June 2024, Robert died unexpectedly of a heart attack. Linda, in shock and grieving, did what she had been told to do years earlier: she called Robert's Minnesota attorney. The attorney sympathetically explained that he could not represent the estate in Florida. He referred her to a colleague in Naples who handled probate. The colleague began reviewing the documents within a week. The issues started immediately. ISSUE 1 — THE WILL'S WITNESSING REQUIREMENTS. Minnesota required two witnesses to sign the will in the presence of the testator. The Anderson will met this requirement. Florida required two witnesses to sign the will in the presence of the testator AND in the presence of each other. The Anderson will didn't make the "each other" clear in the attestation clause. The Florida probate court could have rejected the will on that basis. The Florida attorney had to file a motion to admit the will to probate as a "foreign will" — a will valid where executed — under Florida Statute §733.205. This required affidavits from the Minnesota witnesses (one of whom had since died and the other had moved out of state) and additional court filings. Time added to the probate: ~90 days. Legal cost: ~$3,800. ISSUE 2 — THE DURABLE POA. Robert's durable power of attorney had named Linda as primary and his son David as backup. The document was a Minnesota statutory POA, dated 2014. Linda needed to use the POA to access a brokerage account that Robert had owned alone. The brokerage firm (a national company with offices in multiple states) requested the POA. It came back: "We do not accept Minnesota POAs older than 5 years for Florida residents. Please have your authorized agent sign our Florida POA form." But Robert was dead. There was no one to sign anything. Linda spent a month with the brokerage firm's customer service team, escalating through three layers of management, before they accepted the Minnesota POA — on a single-transaction basis. The account was transferred to her, but the brokerage made clear that any further activity would require a new Florida-based document. ISSUE 3 — THE HEALTHCARE DIRECTIVE. Less consequential, because Robert had already died and the healthcare directive was no longer needed. But the Florida attorney pointed out that if Robert had instead been hospitalized for an extended period in Florida, the Minnesota healthcare directive might have been challenged by a Florida hospital ethics committee. Florida has specific language requirements for life-sustaining treatment decisions that are different from Minnesota's. ISSUE 4 — THE ESTATE PLAN ASSUMED MINNESOTA HOMESTEAD. The 2014 will had a clause about "the family homestead" that referenced Minnesota homestead law. Florida has very different homestead protections — and the Florida house Linda and Robert had bought was now subject to Florida homestead rules. The will language was inconsistent with the current property's actual legal status. The Florida attorney had to draft a clarifying memo to the probate court. THE TOTAL DAMAGE: Probate timeline: 14 months (compared to typical Florida probate of 6-9 months for an uncontested simple estate). Legal fees: ~$12,400 in attorney costs that wouldn't have existed if the documents had been re-drafted in Florida. Estate value reduction: about 1.5% of the estate gross value, eaten by additional legal and court costs. Stress to Linda: high. She spent the first six months of widowhood navigating an estate that didn't have to be this hard. A few months after probate closed, Linda's daughter Sarah, who is herself in her late 50s and lives in California, sat down with Linda and said: "Mom, we need to update your documents. Right now. Florida documents, Florida attorney." Linda did. New will, new durable POA, new healthcare directive — all Florida statutory forms. Cost: $1,800. Time: 5 weeks. Linda's documents are now Florida-compliant. If she ever moves back to be closer to one of her children, the first thing she will do is update them again.

The simple answer: estate planning is primarily state law, not federal law. The federal government taxes large estates (Form 706 above the federal exemption threshold), regulates retirement accounts (ERISA, SECURE Act), and sets a few baseline rules. But the actual mechanics — how wills are validated, how probate works, who inherits when there's no will, what counts as a valid POA — those are all state-level decisions made by 50 different legislatures over 200+ years. The variation isn't random. It often reflects deep historical and cultural differences. COMMUNITY PROPERTY VS COMMON LAW. Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin) follow community property rules — assets acquired during marriage are jointly owned regardless of who earned them. The other 41 states follow common law — assets acquired during marriage belong to whoever earned them unless they were specifically jointly titled. This single distinction creates massive differences in how estates pass at the death of a spouse. INTESTATE SUCCESSION. Each state has its own rules for what happens when someone dies without a will. The default rules differ in important ways. In California, if you die married with one biological child of you-and-spouse, your surviving spouse inherits everything. If you die married with one biological child of you-and-spouse plus one biological child of just you (a child from a prior relationship), your spouse inherits 1/2 and the children share the other 1/2. In Texas, similar but with different fractions. In Pennsylvania, different again. WITNESSING REQUIREMENTS. Most states require two witnesses. Some require those witnesses to be "disinterested" (not heirs). Some require them to sign in the testator's presence. Some require them to sign in each other's presence too. Some allow electronic signatures (most don't, yet). Some have specific affidavit-of-witness forms that should be attached. HOMESTEAD PROTECTIONS. Florida's homestead exemption is famously generous — the family home can be exempt from creditors and can pass to spouse/minor children with strong protections. Texas has similar but distinct rules. Most other states have weaker homestead protection. This single concept can create huge differences in what assets are creditor-vulnerable in an estate. STATE ESTATE / INHERITANCE TAX. Federal estate tax kicks in only above the federal exemption (~$13.61M per individual in 2024). But several states have their own estate tax (CT, HI, IL, ME, MD, MA, MN, NY, OR, RI, VT, WA, DC) with much lower thresholds — sometimes as low as $1M. Six states have inheritance tax (separate from estate tax) on heirs: IA, KY, MD, NE, NJ, PA. Maryland is the only state with both. DURABLE POA STATUTES. The Uniform Power of Attorney Act has been adopted in about half the states. The other half use their own statutes with varying rules. The "hot powers" that need to be specifically authorized (gifting, retirement beneficiary changes, real estate transactions) differ. A statutory POA from one state may or may not be recognized in another. The practical takeaway: when you move across a state line, you may technically have valid documents but you have suboptimal documents. The cost to bring them into compliance with your new state is typically $1,500–$3,000. The cost of NOT doing so, if something goes wrong, is typically 4-10x that. Plus the time, stress, and family conflict. Estate planning is paper, but the paper is state-specific. A document is a contract with the state's rules at the time it was drafted, in the place it was drafted. Move, and the rules around you change. Update accordingly.