Florida is home to several residents who have either permanently relocated from another state or have become seasonal “snowbirds.” A common question asked to a Florida estate planning attorney is, “how will our out-of-state will and other estate documents be treated in Florida?” Each state has its own laws regarding death and estate planning and it is important to consider how one jurisdiction respects the plans made in another jurisdiction.
Tom and Rita were residents of Washington, D.C. when they had their wills prepared; they have since relocated to sunny Florida where they enjoy retirement and their days on the golf course. Tom and Rita inquired with a Florida attorney if the wills that their attorney had prepared in Washington, D.C. will be valid here in Florida. The couple has two adult children who are both successful in business, but not so much in love; both children have strained marriages. Tom and Rita have already established a long-term trust for their adult children to protect each child’s inheritance against any potential divorcing spousal claims. Tom and Rita would like to leave their Florida home to their niece after they have both passed; they have asked if their Washington, D.C. documents accomplish this goal. Although the Florida attorney is also licensed in Washington, D.C. and Florida, the attorney knows that the estate planning documents need to be reviewed solely under Florida law to answer the couples’ question.
Tom and Rita currently reside in a beautiful home in Central Florida. Rita owned the home prior to her marriage to Tom and the property was titled in only Rita’s name. Rita provided her Florida attorney with a copy of her will from Washington, D.C. which stated, in part: “I currently own residential real estate located in Florida, specifically, 123 New York St., DeLand, FL 32724 (the “Florida Residence”). If I own this home at my death, the ownership thereof, together with all personal assets located therein, shall be distributed to my niece, Hillary, if she survives me.” The first problem, other than the lack of legal description for the real property, is the will does not account for Tom; or does it? Pursuant to Florida law, Tom gets a life estate in the Florida home and Rita’s children have a vested remainder interest. Rita’s plan has failed under Florida law; niece Hillary will not receive the home despite the D.C. will.
The D.C. wills had other problems in Florida, e.g., Tom and Rita both named their long-time, trusted family lawyer in Washington, D.C. to be Personal Representative in their wills. A Personal Representative in Florida is an individual who is named by the deceased and confirmed by the court to handle the administration of the last will and testament through a probate proceeding. Unfortunately, many out-of-state practitioners mistakenly believe that they can be named, and act, as a Personal Representative for clients who have relocated to Florida. The law in Florida provides very specific direction on who can and cannot serve as a Personal Representative. Out-of-state attorneys or financial advisors who are not related to the deceased cannot serve. Tom and Rita have failed to name a valid personal representative under Florida law.
Tom and Rita still had other problems with their D.C. wills and ancillary planning documents (living wills, durable powers of attorney, preneed guardianship designations, etc.). The couple is well advised to update their planning documents to be compliant and effective in the Sunshine State. Estate planning should be done early and often; relocating to a new state is a perfect reason and opportunity to have your planning documents reviewed. If you have relocated from another jurisdiction or if you are interested in learning more about what relocation could mean for your estate planning documents, please contact our estate planning team.
On October 2, 2020, ShuffieldLowman attorney Catherine Hanna will be presenting a session on Electronic Wills and Notary as a part of the 2020 Bench Bar Conference, a distance learning event. This online conference session will take place from 11:10 AM to 12:00 PM. Catherine works extensively in the practice areas of fiduciary litigation, probate and trust disputes, and elder law.
The 2020 Bench Bar Conference will provide 55 advanced placement CLE sessions on the following topics: Appellate Practice, Business Law, Criminal Law, Estate, Guardianship & Trust Law, Employment Law, Family Law, Personal Injury / Insurance Law & Practice Management. Registration includes access to all the live sessions and session recordings post conference. Registration is $115 for Orange County Bar Association Members, and $165 for nonmembers. For further information and registration details, visit: https://bit.ly/2G0Bo8Z
ORLANDO, FL — Six partners from the law firm of ShuffieldLowman were recently selected by their peers for inclusion in The Best Lawyers in America© (2021), as published in dozens of city and regional publications in the U.S. including, U.S. News & World Report. The list of honorees includes Scott A. Cookson in Real Estate Law; Matt G. Firestone in Commercial Litigation; Heidi W. Isenhart in Elder Law; J. Stephen McDonald in Commercial Litigation, Gregory W. Meier in Corporate Law and Trusts and Estates and Lynne R. Wilson in Real Estate Law.
Cookson is an experienced attorney in the areas of real estate, land use, and local government law. Firestone practices in the areas of commercial and other civil litigation with an emphasis on aspects of association law. Isenhart focuses her practice in the areas of elder law, Medicaid planning, guardianship, probate and trust administration, estate planning, and special needs trusts. McDonald practices in the areas of commercial and civil litigation, construction law, creditors’ rights, fiduciary litigation, employment law, and securities law. Meier practices in the areas of estate planning, probate, corporate law, partnerships, and taxation. Wilson practices in the areas of commercial real estate transactions, commercial lending, banking, and financial services.
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
ShuffieldLowman’s five offices are located in Orlando, Tavares, DeLand, and Port Orange. The firm is a 45 attorney, full-service, business law firm, practicing in the areas of corporate law, estate planning, real estate, and litigation. Specific areas include tax law, securities, mergers and acquisitions, intellectual property, estate planning and probate, planning for families with closely held businesses, guardianship and elder law, tax controversy – Federal and State, non-profit organization law, banking and finance, land use and government law, commercial and civil litigation, fiduciary litigation, construction law, association law, bankruptcy and creditors’ rights, labor and employment, and mediation.
On June 27, 2020, Florida Governor Ron DeSantis signed House Bill 469 into effect, and it became law on July 1, 2020. The Bill amends Florida Statute §689.01 by removing the requirement that two witnesses must be present for a commercial or residential property lease to be valid. Prior to the amendment of the Statute, each of the parties were required to have two witnesses present when signing a lease for a term of more than one year. The House Bill provides that subscribing witnesses are no longer required to validate instruments conveying or pertaining to a lease of real property.
This requirement was originally in place to prevent fraud or forgery, as witnesses could be asked to verify the legitimacy of leases after the fact in the case of a challenge. However, as Florida and many other jurisdictions trend more heavily in favor of electronic transactions, it has long been a question of whether witnesses are truly necessary. The burden of the witness requirement has only grown through the use of electronic transactions, often adding unnecessary delay to make sure witnesses are available at the same time as the landlord and the tenant.
While this change in the law is small, it is widely welcomed. The removal of the witness requirement improves the speed and efficiency of transactions by making electronic lease signatures much more easily obtainable. This not only has the potential to save time in the execution of leases by allowing a lease to be signed by just the two parties, it also removes one potential pitfall to invalidating a lease.
If you have questions about House Bill 469 or the execution and other requirements for leases in Florida, please contact our real estate law team.