One of the most recurrent issues I run into in presenting seminars to potential and new Florida residents is whether you need to execute new estate planning documents. I confess that I feel a little sheepish when this topic comes up. I see a lot of misleading ads and articles written by Florida attorneys that attempt to scare someone into thinking that their expensive out of state estate plan is no longer valid now that they are a Florida resident. I don’t want a client to think that I am trying to “sell” them a new plan just because they have changed their domicile.
I know that the full faith and credit of the U.S. Constitution provides that if you have executed an estate plan in one state, that all other states must acknowledge that plan.
That being said (and assuaging my guilt), there may be several reasons that you need to consider executing new Florida compliant estate planning documents.
Florida has some rather quirky laws. No, I am not talking about the fact that it is illegal to shower naked in Florida. I am referring to specific laws regarding your estate plan.
In order for a Will to be admitted to probate without further legal proceedings, the Will must be
“self-proved”, meaning that the Will was signed in the presence of two witnesses and a notary, together with a sworn statement that the witnesses saw the testator sign the will in their presence, and in the presence of each other.
Most Florida attorneys follow this procedure, which permits the Will to be admitted into probate by order of the court without further verification from the witnesses.
Not all states have this requirement. For example, in Michigan, where I am also licensed, the Will can be witnessed after the testator signed it. Other states require only one or two witnesses, and do not require notarization. Every state will have its own set of requirements as to what is a valid method of executing a Will. Not all of these requirements will meet Florida’s higher standard.
If you have a will that is not self-proved, the will can still be admitted into probate (again, under Full Faith and Credit). This issue, however, is that the court may require the appointment of a commission (usually a notary) to take the testimony of one of the witnesses that he or she saw the testator sign the document in their presence. This is both time consuming and costly.
By executing a Florida will with a self-proving affidavit, you can save your estate hundreds, if not thousands, in legal fees in having the will simply admitted into the probate court.
The second quirk to Florida estate planning is that Florida has strict limitations on the person who can act as the personal representative (what other states may call an Executor) of the Estate.
In Florida, a personal representative must be a Florida resident, or related by blood or marriage to the decedent. If you have named your out of state attorney or accountant as your personal representative, that person will not be able to act. If you haven’t named a qualified personal representative, your Estate will incur additional fees to find and appoint someone to act on behalf of the Estate.
If you are disinheriting a child, different states will have different requirements. In Florida, you need not mention the child in order to disinherit the child, though it is advisable to do so. Other states will require that the child receive nominal consideration ($1). Massachusetts, for example, requires that the child be named in the Will and that the will state that it is the testator’s intent to
disinherit their child.
Florida also has strong homestead protections, that require that the homestead be left to the surviving spouse or to minor children. Your out of state Will would not likely address this requirement.
For these reasons, it is likely advisable that you have a new Florida Will if you are a Florida resident. The mere statement in your Will that you are a Florida resident may also assist in proving your domicile to another state challenging your domicile for tax purposes.
Estate planning documents are more than just a Will. Florida recognizes several substitute decision making documents, such as a Durable Power of Attorney, Designation of Health Care Surrogate, and Living Will. These documents direct how your assets are to be managed, your health care decisions made, and you plan for end of life if you are disabled.
Again, you may have these documents from your former jurisdiction, and they will be valid. They are likely, however, to refer to your former state’s laws. I have concerns that at the exact time you need these documents, some hospital or doctor may refer them to their legal department for interpretation.
For this reason alone, you should have Florida based substitute decision making powers.
Finally, having Florida estate planning documents offer evidence to your former home state that you no longer consider yourself to be a resident of that state. If you are audited, this is one more proof that you have fully changed your residency to the state of Florida.
Should you have questions or need assistance with drafting Florida estate planning documents, please contact my office.