Making sure your Estate Plan is up-to-date is just as important as making your Estate Plan in the first place.
Your Estate Plan should be reviewed periodically and updated if there are any major changes in your life. Some of these life changes are:
- having children
- getting married
- receiving a large influx of money
- moving to Florida from another State
If any of these circumstances apply to you, or it’s just been a while since you’ve made your Estate Plan, contact me.
I’d be happy to review your Estate Planning documents at no cost to see whether they need updating.
Moving to Florida from Another State
Tens of thousands of people move to The Sunshine State every year. Perhaps you are one of them.
If you are, then welcome!
If you brought Estate Planning documents with you from your previous State, those documents may need to be updated to avoid issues under Florida law.
Let’s take a look at common issues with out-of-State Wills:
ISSUE # 1: Your out-of-State Will is not “self-proving.”
Florida law requires a Will to be “proved” in order to be admitted to probate. This means that a person who has signed the Will as a witness must also sign an oath certifying that the person who made the Will properly executed it.
Fortunately, Florida also provides that a Will may be self-proved. This happens when the person making the Will and the witnesses acknowledge the Will and execute a self-proving affidavit in the presence of a notary. Any Will that is self-proved may be admitted to probate without testimony of the attending witnesses.
Many states do not customarily self-prove wills. In these cases the witnesses must be found to sign an oath before a judge, clerk or deputy clerk, or court-appointed commissioner. Now imagine trying to track down the person who witnessed your Will 20 years ago in New Jersey, and you have some idea of the problem! This procedure adds time and expense to the probate proceeding and can be avoided when possible by drawing up a new Florida Will.
ISSUE # 2: The Personal Representative in your out-of-State Will does not qualify under Florida law.
Florida law requires the personal representative (or executor) named in your Will be either a Florida resident or relative. Many people name friends from their old State in their Will to be the personal representative. If these friends are not Florida residents at the time of the administration of your Estate, they will not qualify and the court may appoint someone you do not want.
ISSUE # 3: The bequest of your home in your out-of-State Will may not pass to who you intended.
Florida’s Homestead Act has strict and unusual laws regarding the distribution of a person’s homestead following their death. If you are married, you can only leave your homestead to your spouse (without a spousal waiver). If you try to do otherwise, the law will overrule your wishes and creates a life estate in the surviving spouse and a remainder interest to your lineal descendants. This issue is particularly problematic in second marriages, where someone wants to leave their entire Estate to their children.
If you recently relocated to Florida, schedule a free consultation with me here.
We can discuss creating your Estate Plan and/or review your out-of-State Estate Planning documents to see whether they contain any issues.