So you’ve made a move to Florida. Do you need a new will and trust? Most often, the answer is no. Generally speaking, an estate plan that was validly executed in the state where it was signed is valid in all other states. However, there are some scenarios which merit updating an estate plan to conform to Florida law. If your estate plan falls within either of these categories, it’s time for an update.
Personal Representative: Non-Family and Non-Resident
Under Florida law, the only non-residents of Florida who may serve as a Personal Representative of a Florida estate are:
- Lineal descendants or ancestors of the decedent
- A spouse, brother, sister, aunt, uncle, niece, or nephew of the decent, or a lineal descendant or ancestor of such person
- A legally adopted child or adopted parent of the decedent
- The spouse of anyone described in the first three qualifying categories.
Typically, the individuals described above are chosen as personal representatives anyway, so a move will often not present an issue. However, if you’ve listed anyone other than close family – resident or not – or someone who is a Florida resident, you should update your plan to include a personal representative who is either a Florida resident, a close family member, or both.
It is important to note that the residency requirements and family requirements imposed for a Florida Personal Representative do not pertain to those serving as trustee under a Florida trust. As such, a trust will not have to be changed to conform with the above requirements.
A holographic will is one that is written in the handwriting of the testator (the person making the will), rather than typed, and is signed by the testator. Many states recognize holographic wills, however, Florida does not. If you have a will that was handwritten instead of typed, it will only be recognized in Florida if it was executed with the formalities normally required for a Florida will. Specifically, in order to be a valid will in Florida, the will must be:
- Signed at the end by the testator, or subscribed by another person at the end at the testator’s direction and while in the testator’s presence,
- In the presence of at least two witnesses who must sign the will in the presence of the testator and in the presence of each other.
If you, as testator, have a holographic will, and it was not signed at the end of the document in the presence of two witnesses who also signed their name in your presence and in each other’s presence, you should update your will to conform to the requirements of a validly executed will under Florida law.
If your estate plan falls within either of these categories, be sure to contact an estate planning attorney to have your plan properly updated. Similarly, while the circumstances noted are those in which an update is needed, there are many other scenarios in which an update could be beneficial. An example would be taking advantage of more favorable local laws based upon a residency change.
If you are thinking about an estate plan update, or unsure of whether it is time for one, contact Mammel Law at 248-644-6326.