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New State, New Estate Plan?

by | Dec 4, 2021 | Estate Planning, Probate

If you are reading this article perhaps you just made the move to sunny South Florida. Well, at least sunny most of the time. First, welcome to your new home and don’t hesitate to reach out to Jason Siegel for some restaurant recommendations. Estate planning, probate, and delicious food are three of my favorite things…not necessarily in that order.

This article will address the question as to whether it’s necessary to review and update your estate planning documents after moving to Florida. Short answer: Yes and here are some reasons why it’s important to review and possibly update your estate planning documents after your move to Florida.

Recognition of your Health Care Documents and Financial Power of Attorney

Florida medical providers and financial institutions should recognize validly drafted directives from other states. That being said, you could run into issues if doctors and medical professionals do not recognize the out of state health care directives and are therefore hesitant to immediately accept them. Imagine being rushed to the hospital and your loved ones hand the doctor a medical power of attorney from another state that the doctor has never seen before. Due to the unfamiliarity, the doctor may be hesitant to act without first checking with his legal department or other administrators in the hospital. For this reason alone it is strongly recommended to get a new health care directive that medical professionals are used to seeing in their normal practice in Florida. It is for the same reason that you should also update your financial power of attorney to ensure it’s accepted by Florida financial institutions.

There are also other important legal reasons to update your out of state medical and financial directives. For example, Florida law requires a financial power of attorney to be witnessed by two people and be notarized. As to health care directives, Florida law has rules as to who can serve as witnesses for a health care directives and therefore non-qualifying witnesses can impact the legality of your health care directives.

Ineffective Provisions in your Last Will and Testament

Generally speaking, a properly drafted and executed Last Will and Testament from another state will be valid in Florida. The problem though is that certain provisions in your out of state Last Will and Testament may not be valid in the State of Florida. Here are some examples of issues that may arise from provisions from an out of state Last Will and Testament.

  • Qualifications required for Personal Representative/ Executor of your Will: In Florida, a personal representative must be either a blood relative or a resident of the State of Florida. So, perhaps you old Last Will and Testament named a friend of yours from another state to serve as personal representative. In Florida, your friend will not qualify to serve as personal representative of your Last Will and Testament. As such, it will be important to update that designation unless, of course, you can convince your friend to move to Florida.
  • No Contest Provisions: Florida law does not permit the inclusion of “No Contest” also known as “In Terrorem” clauses in your Last Will and Testament. In such a clause, the creator of the Will states that if any beneficiary challenges the Last Will and Testament in court and is unsuccessful then said beneficiary will not be able to inherit anything from the Will. Florida law prohibits the use of such provisions and holds that any such language is unenforceable in estate planning documents. So, if your old Last Will and Testament has such a clause then it is important to discuss other options to accomplish your goals.
  • Self Proving Affidavit: A properly drafted Florida Last Will and Testament has a “Self-Proving Affidavit” that states that all the witnesses and the creator of the Last Will and Testament signed the document together in the presence of each other. This notarized affidavit ensures that the witnesses will not have to appear before the clerk or court after your death for the admission of your Last Will and Testament to start the probate process. Some out of state Wills may not have sufficient language and require additional work by your beneficiaries upon your death.

In summary, if you are moving to the Sunshine State it is a very good idea to meet with a Florida estate planning attorney to discuss any documents that need to be updated in your estate plan.

Of course, if you have any questions do not hesitate to reach out to Jason Siegel, Esq. at (561) 284-1160 or email Jason at [email protected]