Estate PlanningLegalProbate and Trust

Retiring to Florida:  Do you need to revise your will? 

Welcome to Florida

 Welcome to the Sunshine State! Florida is a great place to live and a great place to retire. We often get asked by new residents whether they need to replace their wills, trusts or advance directives if they have been prepared and signed outside the state of Florida.  

 A new Florida resident will have many tasks as they put down roots: change your driver’s license, obtain Florida tags on your autos, register to vote, and more.  It is equally important to review all of your estate planning documents. Some of those documents, such as your wills and your revocable trusts may not need to be replaced, but they may need to be modified.  Other types of documents, such as your powers of attorney, living wills or health care surrogates should probably be replaced. 

 Florida law recognizes that wills and trusts that are validly executed outside of Florida will be deemed to be validly executed in Florida.  Oftentimes, there are portions of the documents which may not conform to Florida law. For example, the personal representative of a Florida probate estate must be related to the decedent by blood or live in the state of Florida.  Often the personal representative or the executor of a will prepared in another state may not meet this requirement. Typically, a trust will recite that the law of the state in which the document is signed applies to the administration and interpretation of matters related to the trust.  Though having another state’s law apply to your trust is not in most cases prohibited, it can be cumbersome and expensive to have another state’s law apply upon your death. It may, in fact, be less expensive to simply revise or restate your trust so Florida law will apply.

 Florida law also states that advanced directives, such as living wills, durable powers of attorneys and health care surrogates will be valid in Florida if they were validly executed in another state.  But using one of these documents in Florida may require additional scrutiny of the document. For example, if you present a power of attorney which was executed outside of Florida to transact business or make a simple withdrawal at a Florida bank, that bank has the right to ask for a legal opinion, paid for by you, that the document is valid under the law of the state in which it was originally signed.  The scope of health care documents such as health care powers of attorneys and living wills, varies from state to state. These documents are generally used during an illness or an emergency. You do not want a delay, while the doctor, hospital or nursing home decides what your document means.  

 Finally is the question of domicile for tax purposes.   Florida has no inheritance tax or state income tax. Many northeastern states aggressively pursue taxation on their former residents.  The establishment of legal domicile is a matter of the intent of the resident and is proved by many facts: do you own real property in Florida; do you have a homestead exemption on your residential property; are you registered to vote in Florida; do you file your Federal income taxes from Florida; do your estate planning documents recite that you are a Florida resident?   These are but some of the factors which may be used to establish your domicile in Florida.  

 It is worth the time and the effort to allow a Florida attorney to review your documents, discuss the proof of domicile and determine if your documents should be modified or replaced.

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