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Question:

Trusts often include provisions similar to these:

• Governing law: This document is governed by the laws of [name of state].
• Severability: If any part of this document is invalid or unenforceable, the rest remains in effect.

I’ve seen that some wills include one or both of these provisions but many wills omit both. In my state, statutes covering wills don’t mention the issue of severability but the wills I’ve seen in my state often omit a severability clause.

Am I correct in assuming that, unlike a trust, your will is always governed by the law of your state of residence at death, so a governing law provision is not needed in a will? Even when it’s not expressly covered by statute, do probate courts normally apply severability by default to a will (which might explain why many wills omit this provision)?

Response:

Interesting questions. Your answer to the first question is correct, that the law of the state of residence of the deceased individual governs wills, so there’s no need to mention the governing law in the document.

There are instances where the individual executed their will in one state but moves to another before their death. The original will is still valid. If it becomes an issue, the new state will look to the original state’s laws to determine whether the will is valid. But assuming that’s not an issue, the new state’s laws and procedures will govern the probate process and will interpretation. It would be complicated for either to be governed by the laws of another state, especially those regarding the probate process.

In terms of severability, this rarely comes up in practice since clauses in documents are rarely ruled unenforceable. And it’s even more unlikely to occur with a will than a trust since the probate process usually lasts a year or so and trusts can continue in force for decades, making it somewhat more likely that issues will arise that need to be adjudicated by a court.

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