I am often asked the following question from individuals who recently moved (or are planning to move) to Florida: Do I need to update my out-of-state estate planning documents when I move to Florida?
I recommend that new Floridians have their out-of-state documents reviewed by a Florida attorney. Often, the key issue to address is not whether the client’s documents are valid in Florida (they often are), but rather the administrative problems they likely will encounter in attempting to use out-of-state documents in the State of Florida.
- Advance Directive for Health Care
For example, if a client provides an out-of-state advance directive (including the designation of a health care surrogate and living will) to a health care facility, Florida law considers that document valid in Florida so long as it was validly executed with the law of that state or Florida law. But that assessment could require knowledge of out-of-state law, which the health care facility may not want to deal with and simply refuse to honor the document. Why take that risk?
Another issue, which I will discuss in a later article is that the Florida Legislature adopted significant revisions to the Health Care Surrogates Act in 2015, so older out-of-state advance directives may be limiting to the client.
- Durable Power of Attorney (for Finances)
Another issue I encounter with my clients who have moved to Florida from out of state is the refusal of local banks and financial institutions to honor out-of-state powers of attorney. Like out-of-state advance directives, out-of-state powers of attorney are valid in Florida so long as they were validly executed according to that state’s law or Florida law. Banks can rely upon an opinion of counsel to determine if the out-of-state document was validly executed with that state’s law, but are allowed to charge the principal (i.e., my client) for that. In addition, some banks may simply refuse to honor out-of-state documents. Again, why take that risk?
Significant changes to Florida law regarding powers of attorney were implemented in 2011, so it is recommended to have older documents reviewed by a Florida attorney as well. I will discuss this in more detail in a later article as well.
- Last Will & Testament
While a person’s Last Will and Testament does not take effect until death, it is important to not leave your loved one’s with an additional burden. An out-of-state Will is valid in Florida so long as it is valid in the state where the Will was executed. However, probate administration may prove more difficult with an out-of-state Will. For example, out-of-state counsel may need to be consulted and/or retained after death to assist with administration if there is an issue with the “self-proving” provisions in the out-of-state will. This is an unnecessary additional expense that can be avoided by simply “Floridizing” your out-of-state Will (i.e., executing a codicil to bring the will in compliance with Florida law).
Further, if a person is a Florida resident and/or owns property in the State of Florida, it is important to discuss planning with respect to the homestead protections afforded by the Florida Constitution with a Florida attorney.
- Revocable Living Trust
If have a Revocable Living Trust that was executed out of state and intend to remain in Florida, it is recommended to have a Florida attorney review your trust instrument (the document). Florida law provides that the law of the state designated in the trust document controls provided there is a “sufficient nexus” to that state at the time of creation (for example, the settlors/trustees were living in that state). However, banks and financial institutions in Florida may be hesitant to work with out-of-state documents, and trust administration could be difficult. In addition, the same authority, benefits, and protections that the Florida Trust Code provides may not exist in the out-of-state trust document.
- Conclusion
It is recommended to have a Florida attorney review your out-of-state legal documents if you intend to become a Florida resident or remain in Florida for an extended period of time (including you, snowbirds!). Advocates in Aging, Law Office of Ira S. Wiesner offers a free 30-minute consultation by calling (941) 242-7270 or contact us here!
