Individuals often move to Florida to take a new job or to live out their retirement years in a warmer climate. However, when you move to Florida from another state, you likely need to take some steps to update your estate plan. Working with an estate planning lawyer can help you determine the appropriate measures to ensure that your will and other aspects of your estate plan comply with Florida law. In addition, a Florida estate planning attorney at Kramer Green can help you navigate the estate planning process to meet your unique needs and objectives.
You must review your will to ensure it complies with all aspects of Florida law.
For example, Florida law presumes that if your will was valid under the law of the state in which it was executed, it is valid. However, even if the will is legally valid in the other state, it still must meet some requirements in Florida, including the following:
- Your will must be “proved.” A person who signed the will as a witness can sign a certification under oath stating that you executed the will with all the proper legal formalities and were competent to do so. However, tracking down people who witnessed your will in another state decades ago can be difficult. Furthermore, a witness must sign the certification under oath in the presence of a Florida court judge, clerk, or commissioner appointed by a Florida court. This requirement also can be challenging to meet.
- Alternatively, your will may be self-proved, which occurs when the person making the will and the witnesses acknowledge the will and execute a self-proving affidavit in the presence of a notary. However, not all states provide for self-proving wills, so your current will from another state may or may not meet this requirement.
- Under Florida law, your personal representative must be a Florida resident or someone related to you. If the personal representative named in your current will is not a relative and lives in another state, then you will need to designate a new personal representative to administer your estate under Florida law. Otherwise, the court may appoint someone who you do not want to be your personal representative.
Florida laws regarding the inheritance of homesteads are strict.
Florida Statutes §732.401 requires that your surviving spouse inherit a life estate in your homestead property upon your death, even if your will states otherwise. After the surviving spouse’s death, the homestead goes to your lineal descendants. Although there are some exceptions to this general rule, in that the surviving spouse may elect to take a different share of the homestead, the bottom line is that the surviving spouse is entitled to some share of the homestead, unless waived or otherwise agreed to by the surviving spouse If you are in a second or subsequent marriage and wish to leave your homestead solely to your children, Florida law does not permit you to do so. Therefore, you may need to revisit your estate plan and determine how to structure it to achieve your goals and comply with Florida law.
Your current will may identify you as a resident of another state.
Florida, unlike many other states, has no estate tax. Although the estate tax threshold is currently quite high, it may not always remain so high and could affect your estate at your death. If your will identifies you as a resident of another state, your estate may be subject to estate taxes if that state determines that you are still a resident of that state. For example, in 1992, a Pennsylvania court ruled that the estate of a man who had moved from Pennsylvania to Florida was subject to Pennsylvania estate taxes, even though he had a Florida driver’s license, owned a Florida homestead, maintained bank accounts, and filed federal tax returns from a Florida address. However, the Pennsylvania court found that he was domiciled in Pennsylvania because his will proclaimed that he was a resident of Pennsylvania.
Look to Kramer Green for Help with Your Estate Plan
A Florida estate planning lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. is prepared to assist you and your family through every step of the estate planning process. We know how to structure your estate plan to preserve your assets and relieve your loved ones of the burdens of complex probate and estate issues to the greatest extent possible.
Our objective is to guide you through the complex legal matters that estate planning can involve. Contact our office today at (954) 966-2112 or reach out to us online to schedule a time to discuss your estate planning issues with our estate planning attorney.