You have estate planning documents prepared in the state of your former residence but are now a Florida resident.
Maybe you have moved to Arizona or another nice warm sunny state. Here’s a question: do you need to get your estate planning documents redone? Maybe. Should you have them reviewed by an estate planning attorney in your new retirement state? Definitely, advises TC Palm in the article that asks “Should new Florida residents update their out-of-state estate planning documents?”
When it comes to your will, in the state of Florida, as long as your will from another state is valid under that state’s law, it will be honored in Florida.
However, there may be laws in Florida that could cause some problems with the out-of-state will. That applies to other states as well.
Here’s a good example. Let’s say you now own a home–known in Florida as a “homestead”—and your out-of-state will transfers your residence at the time of your death to a trust for the benefit of your spouse and your children.
The only person who can receive a homestead in Florida is the spouse. If your will from out-of-state was used, the house would result in a life estate going to the spouse with a vested remainder to your children. This doesn’t achieve the result you wanted: to have the property controlled by a trustee and not your spouse and children. If this was a second marriage, the potential could be a family blow up, even litigation. Even in a first marriage, if the children and their mother differ on what should happen to the family homestead, there would be trouble ahead.
Taking that example further: What if your out-of-state will directs the sale of your home in Florida and distribution of proceeds in equal shares to your children? If you die with creditor claims, you lose the homestead exemption for creditor protection purposes. Your children’s inheritances could then be at risk.
More food for thought: if your out-of-state will appoints a non-relative who is a resident of the state where your will was originally executed to serve as your personal representative, they won’t be able to do much in Florida. That’s because they are not eligible to serve as a personal representative under Florida law, which only allows a non-relative to serve, if they are a Florida resident.
Every state has its own laws, and while some issues are fairly consistent from state-to-state, that is not always the case.
Once you’ve settled into your new home, make an appointment with an estate planning attorney, who has the experience in your new state. They may not have to completely overhaul your current plan, but there may be things that need to be addressed.
Reference: TC Palm (Nov. 14, 2018) “Should new Florida residents update their out-of-state estate planning documents?”
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