June 10, 2019

Should Estate Plans be Updated for Those Who Relocate to Florida?

Has a friend, family member or colleague recently relocated to Florida or thinking of moving to the Sunshine State? They may have a will or a full estate plan that was prepared by an attorney in another state, or perhaps they haven’t yet taken the important step of planning their estate.

Either way, a relocation to Florida is a prime opportunity to ensure that they have an estate plan that is tailored to their current situation and will provide the best options available to them under Florida law.

Most wills that are valid in another state will be recognized in Florida. Section 732.502(2) of the Florida Statutes provides that a will “other than a holographic or nuncupative will, executed by a nonresident of Florida … is valid as a will in this state if valid under the laws of the state or country where the will was executed.” Unlike some states, Florida does not recognize holographic wills (those that are hand-written by the testator and not signed by two witnesses) or nuncupative wills (those made orally in the presence of witnesses).

Even if a will is recognized in Florida, it may not adequately reflect someone’s current circumstance or it may not accurately express their wishes under Florida law. The presence or absence of one sentence could completely alter the interpretation. For example, the Florida Supreme Court held that the lack of a residuary clause (a “catch all” provision to distribute assets not otherwise specified) changed the meaning of a will in Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014). The maker of the will clearly wanted everything to go to her brother. Without a residuary clause, however, the property acquired after making the will was not covered by her will. The Court decided that the after-acquired property must go to different relatives as if there had been no will.

It is important to ensure that one’s Last Will and Testament properly expresses their intent under Florida law. Even if it does, it generally must be probated, which is an expensive, time-consuming, and tedious court proceeding, and the court records would be accessible to the public. To protect someone’s privacy and avoid the hassle of court proceedings, a Florida estate-planning lawyer can prepare a Revocable Living Trust that would avoid probate of the assets titled in the name of the trust. The attorney can also update or create one’s Durable Power of Attorney, designation of Health Care Surrogate, Living Will, and nomination of a preneed guardian.

Estate planning can provide peace of mind, knowing that one’s affairs are arranged the way they want them—and helping to avoid costly and stressful probate and guardianship proceedings. Ideally, an estate plan should be reviewed and updated at each major milestone of life such as marriage, purchasing a home, having children, getting a promotion, retiring, or relocating. If someone you know has relocated to the Sunshine State, a Florida lawyer can assist them in ensuring that their estate plan will carry out their wishes in the best way possible under Florida law.

Robin I. Bresky, Esq., is the founder of  Bresky Law, which focuses on Estate Planning, Probate, Estate and Trust Administration, Appeals, Litigation Support, and Trial Assistance. A member of The Florida Bar since 1999, Bresky earned her Juris Doctorate degree from Chicago-Kent College of Law.