Estate Planning, Simple Wills, Living Wills, Trusts, Designation of Health Care Surrogate, Power of Attorney, Declaration of Domicile, Florida Homestead Exemption on Primary Residence and Other Important Considerations; What Documents Florida Will and Won’t Recognize, When you Need New Florida Documents
Clients often ask me, when they are moving to the State of Florida, considering such a move, or purchasing property in Florida if the wills and other documents which they have prepared in New York or another state or country need to redone. Assuming their wills were properly drafted and executed in accordance with the other state’s laws in the U.S., then the wills are valid and recognized in Florida, and in any other states. If your documents are from another country, you will need to have a set of documents prepared in Florida.
While the execution requirements for wills are more stringent in Florida than in many states, there is no need to automatically redo one’s out of state wills, but one should be aware that when the time comes to probate the will, if that occurs in Florida, then the Court will request an affidavit from an attorney in the other state, stating that the will was executed properly in accordance with that state’s laws. If you are coming to Florida from another country, such as Canada, Europe, or elsewhere, you should promptly consult with a Florida attorney and have appropriate documents drawn up in Florida to at least cover your Florida assets, and to protect you while you are in Florida. In addition to a simple will, at a minimum, people should have a Living Will, a Designation of Health Care Surrogate, and Power of Attorney documents drafted and properly executed. If you are new to Florida, consulting with an attorney will facilitate the process and ensure your documents are done correctly. Upon consulting with your Florida attorney, you may see fit to have other more complex documents as part of your estate planning strategy, such as a revocable trust, life insurance trust, or irrevocable trust. Your attorney will guide you through the process of determining which best suits your needs and circumstances. As you will read below, estate planning has many more implications than simply spelling out whom you want to leave what to, and who will be in charge of distribution.
If a client declares domicile in Florida, making Florida their legal residence, regardless of whether they still own property in other states or countries, it makes sense as a matter of course to promptly meet with a Florida attorney, and to draft new documents in the State of Florida, in accordance with Florida laws. Many clients meet with their new Florida counsel before even deciding to purchase property or make Florida their primary residence. Meeting with a Florida attorney may help identify other issues clients may want to consider that can result in significant savings of time, money, and stress in the future. When purchasing property or choosing to make Florida your permanent legal home, you should always consult with a Florida attorney for help with identifying the elements needed to properly declare Domicile in Florida so your intent is most likely to be recognized, especially by tax authorities from another jurisdiction, assistance with the purchase of any real estate, and advice on filing for Homestead Exemption on your primary Florida residence, which confers a host of tax benefits and protects qualified owners from a number of potential creditors. Aside from tax savings and warmer winters, the Florida Homestead Exemption is one of the major reasons people make a strategic decision to make Florida their home.
While one’s New York or other state’s wills are valid for Florida, probate is an entirely different issue. If a former resident of New York or another state dies as a resident of the State of Florida, the law requires that the will be probated in Florida. While probate in some states, such as New York is relatively simple, expedient, and inexpensive, the probate process in Florida is quite involved, lengthy, and costly. Therefore, clients who have relocated to Florida should consult with a Florida attorney and not only prepare a Florida will, they should also consider with the advice of their attorney other measures to avoid probate, such as a revocable living trust drafted under Florida law, or a simple will and joint ownership of assets or designated beneficiaries to avoid a long, drawn out legal proceeding where assets may be tied up for months if not a year or more, when beneficiaries need funds to manage assets, pay bills, taxes, expenses, and live on.
Florida Residents Purchasing or Owning Property Outside Florida
Although a typical scenario is for out of state folks to be moving to Florida, we also deal with many Floridians who end up purchasing property in another state or jurisdiction for vacation, investment, or any number of reasons. Consulting with your Florida attorney, and an attorney in the other jurisdiction is important to make sure the assets are properly addressed in your estate plan, and to make revisions as needed. Attorneys frequently work with colleagues in other states with their shared clients to develop the best possible strategy given the shared and individual concerns of each jurisdiction’s laws. Clients often have more than one attorney, and as attorneys, especially in a place like Florida where there is so much migration and investment from out of state and abroad, your Florida attorney should be well-versed in working with counsel in other jurisdictions, and clients are advised to look at this as vital to having a cohesive strategy that takes into account all considerations. We are also used to working with CPA’s and other professionals clients work with in other jurisdictions in order to most effectively represent our client’s interests.
Annual Estate Plan Review—As Important to your Life and Legacy Planning as an Annual Physical
Assuming nothing has changed whatsoever in your personal, family, living, work, retirement, or financial situation, we highly recommend and cannot stress enough that all clients review their documents with their attorney at least once per year. We liken it to going to the doctor for a comprehensive annual physical. Even if a client’s personal situation hasn’t changed, there may be external changes to things like tax laws that would make a revised strategy prudent.
Handwritten Wills and Intestate Succession- Why you don’t want the court to settle your estate for you
Other times when Florida will refuse to recognize an out of state will are if the will is handwritten and not properly witnessed, even if the will would be valid in the other state—the only time a court would recognize such a will is if it merely divided up personal property, such as clothing, jewelry, or vehicles. Another time when Florida will NOT recognize an out of state will is if the will was made in another state which has different execution and witness requirements than Florida, and at the time the person was a resident of Florida. Lastly, if a person in Florida is on their deathbed, and verbally instructs family, friends, or another person how to distribute their property, this type of will is called an oral or nuncupative will, and is not valid in Florida. A person who dies a Florida resident without a will, or without a valid, legally recognizable will dies intestate, or without a will. Florida has very specific guidelines for distribution of assets when someone dies intestate, called the laws of intestate succession. While the specific formula for intestate succession sometimes distribute assets in the same manner as the decedent may have wanted had they made their wishes in a properly executed will, there is a possibility that the laws of intestate succession will result in an outcome that would be contrary to the decedent’s wishes. Also, a court would have to be involved and appoint an administrator, which costs time and money. Why leave these important decisions to chance? Some simple and relatively inexpensive pre-planning can save your loved ones a lot in the long run, and can ensure your wishes are fulfilled.
Health Care Documents: You MUST Have Florida Documents
One additional very important caveat: while MOST wills should be valid most states, that is not true of the health care proxy, living will and durable power of attorney, other documents that should be part of any basic estate and life planning, representing an area where people often find themselves caught off guard with major problems and implications they never considered, often at the worst possible time. These documents tend to be very state-specific, with each state essentially having their own, preferred, forms and requirements. I always recommend that when a client moves to Florida, or another state, or even if they spend a few months there, that they have an attorney licensed in that state prepare a second set of these documents, designed to conform to the laws of the other state. That ensures these necessary and important forms will be honored more easily in the state where they are being used. This is crucial if you relocate that you immediately update these documents. It is also critical for folks like snowbirds who spend part of the year in Florida, whether they own property, rent, or even stay in public accommodations.
What if you are hospitalized and end up on life support and your documented wishes from another state won’t be honored? Do you want to be stuck in a Florida hospital against your wishes for weeks, months, or years, even if Florida is not your permanent home? What if you are incapacitated and unable to make financial or health care decisions on your own behalf? Would you like a trusted loved one, friend, or advisor to legally act on your behalf, or would you prefer that loved ones be left to argue about it and for the court to get involved and appoint someone against your wishes who might not be a family member or someone you would choose? In the interest of avoiding needless heartache in this kind of situation (which is more common than people think), it is imperative to meet with an attorney in Florida and have your wishes spelled out legally and in writing so that you and your loved ones are protected. Most Florida trust and estate attorneys deal with snowbirds and newcomers to our state all the time and are experienced in dealing with the host of issues that are bound to arise. A consultation with an experienced Florida attorney will point you in the right direction. Typically, your Florida attorney will review any and all documents you may have from another state or jurisdiction and suggest you draft a set in Florida, whether Florida is your new domicile, or you are just spending part of the year here, and you continue to spend time and own property elsewhere. Reviewing all your documents, updating them, and conforming your wishes to Florida’s legal standards for all your documents is one of the first things you should do once purchasing property in Florida, or making it your permanent legal home.