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By Jon Carroll

My mother, who was born and raised in Florida, used to quip that no one lived here until air conditioning and mosquito control became prevalent.  Today, climate and pest control, along with beautiful beaches, a temperate climate and no state income tax, among other things, continue to draw new residents to Florida.  Perhaps you have just moved to the area from out of state, or maybe you are a visitor contemplating turning your vacation destination into your permanent home.  If you already have a trust or will from another state, or own property elsewhere, you should know how Florida law may affect your existing arrangements.

A common question is whether your documents, created in another state, are still valid after you move.  The simple answer is yes.  Relocation from one state to another does not invalidate your will, trust, or power of attorney, but some issues could arise.

For example, your trust likely contains a “governing law” clause that determines which state’s law controls the trust’s validity, interpretation, and administration.  However, if there is no longer any real connection to the original state, a court could decide that Florida is now the primary place of administration and apply Florida law to administrative issues despite an out-of-state governing law clause.

One area where an out-of-state trust or will is often affected by Florida’s laws is with regard to homestead property.  Florida has very strong homestead protections, and our laws reflect a strong public policy in favor of a surviving spouse or minor child inheriting your homestead property.  If your old trust was drafted in another state, it may not account for these homestead rules, which can cause provisions about who inherits the house, or when it can be sold, to fail or operate very differently than you intended.

While some states recognize “holographic wills”, Florida does not. A “holographic will” is a will that is handwritten, dated and signed by an individual.  Unless the will has been witnessed by two witnesses and is therefore no longer considered a “holographic will”, it will not be recognized by a Florida court.

Additionally, with regard to wills, Florida imposes rules on who can serve as a personal representative/executor of an estate. Generally, a nonresident may serve only if they are related to the decedent by blood, marriage, or adoption. For trustees, Florida allows out-of-state individuals or institutions to serve, but the practicality of managing assets in Florida should be considered, and it may be wise to appoint a co-trustee or successor trustee who is physically closer.

If you still own property in another state after your move to Florida, your estate may face what is called “ancillary probate” in that other state when you pass.  Ancillary probate is a second, additional court proceeding, on top of any Florida probate, to transfer title in the out-of-state property. Titling that property in a properly structured trust, business entity, or other planning vehicle can often reduce or avoid the need for ancillary probate.

As you are settling into your new life in Florida, take a moment to ensure your estate plan is still properly settled.

Jon Carroll is a licensed attorney.  The information in this column is provided for educational and informational purposes only, and does not constitute legal advice, nor establish an attorney client relationship.  Consult a qualified attorney in your jurisdiction for legal advice specific to your situation.

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