Estate Planning – Many people choose to retire in Florida. With average high temperatures of 79.5°F year round, it is no surprise that the state – especially South Florida – has such a draw. Since a good number of retirees arrive here with wills drafted in other states, it’s important to beware of the pitfalls of going into probate in Florida with a will from a different jurisdiction.
Here are three actions that a new resident can take to ensure that their will be updated to Florida law and maintained correctly over time.
Action 1: Hire a Local Attorney
Florida estate planning law is very complex. Although state-specific “last will and testament” templates are downloadable on the Internet, it is advised that you retain an experienced Florida attorney to ensure that your will be drafted in accordance to Florida law. An attorney will ensure that your new Florida will reflects your intentions and the best interests of your beneficiaries.
Action 2: Update Your Will for Florida
There are three areas where most new residents can benefit by updating their will to full compliance with Florida’s estate planning laws. Firstly, your will must meet Florida’s statutory standard of being a “self-proving” document. This means that two witnesses signed the document in the presence of the testator (author of the will) and of each other. Then the testator has to sign the will in the presence of both witnesses. Then, a notary must verify the witnesses and testator in order to make the will a self-proving document (although, in Florida, no notarization by the notary is technically required). Wills that fall short of this standard are said to be non-self proving affidavits. Non-self proving affidavits require one of the witnesses to be contacted by the court before the will goes into probate. This creates a logistical hurdle, bringing delays and potentially extra cost. Upon moving to Florida its essential that any existing will is made self-proving before the testator dies. Secondly, certain people assigned as representatives of the testator’s estate must be Florida residents. While non-resident relatives are allowed as representatives, it is important to be aware that others must be residents and financial institutions or lawyers appointed must be licensed to do business in Florida. To validate the will in Florida, many new residents would have to appoint qualifying representatives and update the language of the will to reflect the change. A third area where wills from out-of-state need to be updated, is in the specific language granting powers of attorney to individuals and business entities. In Florida, language granting power of attorney must be explicit and show detailed areas where the power of attorney applies. A line in the will granting a friend, relative or lawyer general power of attorney over “all matters related to my affairs” is not recognized under Florida’s Power of Attorney act of 2011. Because most other states allow less specific language, a more specifically worded power of attorney will need to be spelled out in the will after a testator moves their residency to Florida.
“…your will must meet Florida’s statutory standard of being a ‘self-proving’ document.”
Action 3: Review your will every three years
It is recommend that all wills are reviewed and, if needed, revised every three years. This is because of the transient nature of personal and business relationships, changes in assets and because laws affecting wills and trusts can change significantly over time. In recent years, Florida laws have affected existing wills such that many have had to be revised to adjust to these changes. According to Florida law, wills can be revoked or amended with “codicils” at any time by the deliberate action of the testator. Check in with your estate attorney regularly to ensure that your will is up-to-date and, if not, to advise on what revisions should be made. Also ensure that your listed assets, chosen representatives and other details reflect your current situation and interests.
Making a will is a complex and multifaceted process made more so when you move to a new state. Whether you are an existing or new Florida resident, turn to South Florida Law for all of your estate planning needs. Our experienced lawyers draft and review wills and trust documents and ensure that your estate planning strategies work optimally in the Florida legal system. Call us today for a free consultation on (954) 900-8885 or reach out via our contact form.
Burton Landau, Esq is Founding Partner of South Florida Law, PLLC. He graduated Cum Laude with a Master’s in Business Administration from the H. Wayne Huizenga School of Business and Entrepreneurship at Nova Southeastern University and his Juris Doctorate from St. Thomas University School of Law. Mr. Landau is fluent in Russian.