You May Need to Update Your Will When You Move to Florida

Downtown Miami, people walking along Miami River
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A large part of practice as a Florida estate planning attorney is devoted to working with new retirees who have decided to give up their residency up north and become permanent residents of Florida. Aside from helping them overcome the hurdles created by their former northern state of residence (which still wants to collect tax dollars from retirees who maintain what they now consider to be their second home up north), another obstacle that must be overcome is an estate plan drafted in their northern state that will most likely not work well in Florida.

Below is a list of the common problems with northern estate plans that I run into on a frequent basis and how to avoid them.

The Last Will and Testament is not self-proved  

F.S. §732.503 provides that a Last Will and Testament can be made "self-proved" when the testator signs an affidavit in front of two witnesses and a Notary Public who also sign the affidavit in front of the testator and Notary. The affidavit can then be used as evidence that the testator and witnesses signed the will with proper legal formalities required by Florida law. Unfortunately many wills I review that were not created under Florida law lack a self-proving affidavit. What does this mean? It means that before the will can be admitted to probate in Florida, at least one of the people who witnessed the will must be located and asked to sign an affidavit attesting to the fact that they actually witnessed the testator signing the will.

This, in turn, will create extra steps and expenses and can significantly delay the appointment of a personal representative in Florida. If your will is not self-proved, the only way to fix it is to sign a new one that contains a self-proving affidavit.

Disqualified Personal Representatives are named in the Last Will and Testament  

Florida law requires that the person named to serve as the personal representative of a Florida estate must either be a Florida resident or related to the testator by blood or certain marital relationships (see F.S. §733.304).

Or, if you want to choose a bank or trust company to serve as your Personal Representative, then it must be authorized to do business in Florida. This means that if a friend who isn't a Florida resident, the attorney from up north who drafted the will, or your local northern bank is named to serve as the Personal Representative in your will, they will nonetheless be disqualified from serving in Florida. And that's it, there isn't any argument that can be made or any exceptions to the rule, the disqualified person or institution will simply not be allowed to serve and someone who is qualified will need to be appointed. This can be fixed by naming a relative, a Florida resident, or an institution authorized to do business in Florida as your Personal Representative.

Revocable Living Trusts ignore Florida homestead laws 

Many northerners who buy a second home in Florida title the home in the name of their Revocable Living Trust in order to avoid Florida ancillary probate after they die. But then when the owner decides to make their second home in Florida their primary residence and apply for the Florida homestead exemption, their northern drafted Revocable Living Trust won't contain any references to Florida homestead laws, and so the Florida property appraiser will have to reject the homestead application.

This can be fixed by amending the trust and adding the "magic words" to the trust agreement as required by Florida property appraisers.

Revocable Living Trusts of married couples ignore Florida homestead laws  

What happens when the northerners are married and decide to title their second home in Florida in the name of their Revocable Living Trusts, and then, as above in #3, the couple decides to make the Florida home their primary residence? If the couple's northern drafted Revocable Living Trusts contain typical estate tax planning through the use of AB Trusts, then when one spouse dies the Florida home will not pass into the A Trust or B Trust but will instead be distributed as provided by Florida law. This, in turn, will completely defeat the couple's estate planning goals and may very well land the surviving spouse and children in court, particularly if the deceased spouse had children from a prior marriage that don' get along with their stepparent.

This can be fixed in several ways, including taking the homestead out of the trust and titling it as tenants by the entirety, using an enhanced life estate deed, or signing a postnuptial agreement waiving the Florida homestead rights pertaining to descent and distribution.

Durable Powers of Attorney are inadequate

On October 1, 2011, Florida enacted a new power of attorney law that made sweeping changes to the laws governing durable powers of attorney. Florida law now requires that the powers delegated to an agent under a power of attorney must be very specific. In other words, a catch-all phrase such as "my agent can do anything that I can do as if standing in my shoes" won't cut it in Florida. Instead, the powers given to the agent must be enumerated in detail. Anyone who owns assets in Florida should consider signing a new power of attorney that complies with the new Florida power of attorney law. ​

What is the bottom line?

Many wills, trusts, powers of attorney and other estate planning documents drafted in northern states, unfortunately, do not cross state lines into Florida very well. If you're making the move to become a Florida resident, or if you've already become a Florida resident but haven't updated your estate plan, then it's very important to have your northern-drafted wills, trusts and other documents reviewed by a Florida estate planning attorney to ensure that your estate plan will work in Florida the way you expected it to work up north.

A large part of practice as a Florida estate planning attorney is devoted to working with new retirees who have decided to give up their residency up north and become permanent residents of Florida. Aside from helping them overcome the hurdles created by their former northern state of residence (which still wants to collect tax dollars from retirees who maintain what they now consider to be their second home up north), another obstacle that must be overcome is an estate plan drafted in their northern state that will most likely not work well in Florida. Below is a list of the common problems with northern estate plans that I run into on a frequent basis and how to avoid them.

The Last Will and Testament is not self-proved  

F.S. §732.503 provides that a Last Will and Testament can be made "self-proved" when the testator signs an affidavit in front of two witnesses and a Notary Public who also sign the affidavit in front of the testator and Notary. The affidavit can then be used as evidence that the testator and witnesses signed the will with proper legal formalities required by Florida law. Unfortunately many wills I review that were not created under Florida law lack a self-proving affidavit. What does this mean? It means that before the will can be admitted to probate in Florida, at least one of the people who witnessed the will must be located and asked to sign an affidavit attesting to the fact that they actually witnessed the testator signing the will. This, in turn, will create extra steps and expenses and can significantly delay the appointment of a personal representative in Florida. If your will is not self-proved, the only way to fix it is to sign a new one that contains a self-proving affidavit.

Disqualified Personal Representatives are named in the Last Will and Testament  

Florida law requires that the person named to serve as the personal representative of a Florida estate must either be a Florida resident or related to the testator by blood or certain marital relationships (see F.S. §733.304). Or, if you want to choose a bank or trust company to serve as your Personal Representative, then it must be authorized to do business in Florida. This means that if a friend who isn't a Florida resident, the attorney from up north who drafted the will, or your local northern bank is named to serve as the Personal Representative in your will, they will nonetheless be disqualified from serving in Florida. And that's it, there isn't any argument that can be made or any exceptions to the rule, the disqualified person or institution will simply not be allowed to serve and someone who is qualified will need to be appointed. This can be fixed by naming a relative, a Florida resident, or an institution authorized to do business in Florida as your Personal Representative.

Revocable Living Trusts ignore Florida homestead laws 

Many northerners who buy a second home in Florida title the home in the name of their Revocable Living Trust in order to avoid Florida ancillary probate after they die. But then when the owner decides to make their second home in Florida their primary residence and apply for the Florida homestead exemption, their northern drafted Revocable Living Trust won't contain any references to Florida homestead laws, and so the Florida property appraiser will have to reject the homestead application. This can be fixed by amending the trust and adding the "magic words" to the trust agreement as required by Florida property appraisers.

Revocable Living Trusts of married couples ignore Florida homestead laws  

What happens when the northerners are married and decide to title their second home in Florida in the name of their Revocable Living Trusts, and then, as above in #3, the couple decides to make the Florida home their primary residence? If the couple's northern drafted Revocable Living Trusts contain typical estate tax planning through the use of AB Trusts, then when one spouse dies the Florida home will not pass into the A Trust or B Trust but will instead be distributed as provided by Florida law. This, in turn, will completely defeat the couple's estate planning goals and may very well land the surviving spouse and children in court, particularly if the deceased spouse had children from a prior marriage that don' get along with their stepparent. This can be fixed in several ways, including taking the homestead out of the trust and titling it as tenants by the entirety, using an enhanced life estate deed, or signing a postnuptial agreement waiving the Florida homestead rights pertaining to descent and distribution.

Durable Powers of Attorney are inadequate

On October 1, 2011, Florida enacted a new power of attorney law that made sweeping changes to the laws governing durable powers of attorney. Florida law now requires that the powers delegated to an agent under a power of attorney must be very specific. In other words, a catch-all phrase such as "my agent can do anything that I can do as if standing in my shoes" won't cut it in Florida. Instead, the powers given to the agent must be enumerated in detail. Anyone who owns assets in Florida should consider signing a new power of attorney that complies with the new Florida power of attorney law. ​

What is the bottom line?

Many wills, trusts, powers of attorney and other estate planning documents drafted in northern states, unfortunately, do not cross state lines into Florida very well. If you're making the move to become a Florida resident, or if you've already become a Florida resident but haven't updated your estate plan, then it's very important to have your northern-drafted wills, trusts and other documents reviewed by a Florida ​estate planning attorney to ensure that your estate plan will work in Florida the way you expected it to work up north.