Was your Estate Plan Prepared in Another State?
If your estate plan was prepared in another state before you moved to Florida, your documents may need to be updated to comply with Florida law.
To be valid in Florida, a will must be in writing and be signed by the testator at the end in the presence of two subscribing witnesses who signed as witnesses in the presence of the testator and of each other. However, if a will was validly executed according to the law of the state where it was executed at the time it was executed, it may be offered for probate in the State of Florida.
To be admitted to probate, the will must be proved by the oath of a witness to the will or made self-proving at the time of execution by compliance with Florida law or the law of the State where it was executed at the time it was executed. If the will was not made self-proving, we look to see if the names of the witnesses are legible and evaluate the ease with which those witnesses may be located after your death. If your will is not self-proving and you have no additional changes, we may need to prepare a codicil which identifies your prior will by the date of its execution and the names of the witnesses, have you declare that you adopt the provisions of that will as your will, and have you sign it in the presence of two new subscribing witnesses who sign it as witnesses in your presence and in the presence of each other, and then have you and the witnesses execute a certificate in the presence of a notary to make the will self-proving under Florida law.
Other changes may be necessary as well. For example, if the person you have named as personal representative is not a Florida resident, they can serve only if they are related to you by blood or marriage, and only if they have not been convicted of a felony. You may have to change the person you have appointed as personal representative.
Another thing we look for is whether your will includes a power of sale for real property, including homestead real property. If not, a court order will be required for your personal representative to be able to sell the property prior to making distribution to your beneficiaries.
We look at those same items when we review a trust executed out of state. In addition, we recommend that you amend the trust to do 4 things:
(1) Declare that you are now a Florida resident. The purpose of that declaration is so that you may apply for the Florida homestead tax exemption and to provide evidence that your estate is not liable for the payment of a state inheritance tax to the state of your prior residence.
(2) Make it clear that Florida law will apply to any disputes regarding the validity and interpretation of the trust.
(3) Incorporate the fiduciary powers provided by Florida Law, including the power to sell and transfer property of the estate without court order.
(4) Add a Florida homestead provision so that you can continue to claim the homestead tax exemption.
In addition, there are 3 other documents relating to incapacity planning that you should have reviewed after moving to Florida.
While Florida law recognizes wills and trusts validly executed in other jurisdictions, in some cases, after the attorney reviews the document, a Durable Power of Attorney will need to be updated to a Florida Durable Power of Attorney. It needs to be executed with the same formality as a Florida deed.
You will also need an updated Designation of Health Care Surrogate which authorizes your health care providers to discuss your medical condition and treatment with the person you have designated as your surrogate, and you may also want to obtain a Florida statutory Living Will.
In updating your estate plan, it is always worthwhile to take a look at asset protection issues. Everyone is familiar with estate taxes and how to reduce or eliminate your exposure there. Estate tax planning is focused on protecting your assets before distribution to your beneficiaries. What people tend to overlook is asset protection planning for the beneficiaries who will inherit their wealth, including the spouses they may leave behind. In this uncertain economy, the asset protection dimensions of your estate plan may be your most important legacy.