Will My Out-Of-State Will Be Valid in Florida?
Aug. 29, 2020
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.