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 that still wants to collect tax dollars from retirees who maintain what they now consider to be their second home, another obstacle that must be overcome is an estate plan drafted in their northern state that will most likely not work very well in Florida. Here is a list of the problems with northern estate plans that I run into frequently:
1. 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.
2. 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). This means that if a friend who isn’t a Florida resident or the attorney from up north who drafted the will is named to serve as the personal representative, then he or she will be disqualified from serving in Florida. And that’s it, there isn’t any argument that can be made or exceptions to the rule, the disqualified person will simply not be allowed to serve.
3. 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 Florida second home their primary residence and apply for the Florida homestead exemption with regard to real estate taxes, 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.
4. Revocable living trusts of married couples ignore Florida homestead laws. What happens when the northerners are married and decide to title their Florida second home in the name of their revocable living trusts, and then, as above, 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.
5. 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 anymore. 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.
The bottom line: Many wills, trusts, powers of attorney and other estate planning documents drafted in northern states won’t 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 attorney estate planning attorney to insure that your estate plan will work in Florida the way you expected it to work up north.
Debra G. Simms
