If you’ve recently moved to Florida, reviewing your estate plan may be one of the last things on your list of things to consider. However, whenever you move to a new state it is always worthwhile to review your estate plan and make sure that the documents comply with the law of the new state that you are living in. Probate and estate planning law varies from state to state. Therefore, you may have documents in your estate plan that will not work in your new state of residence.
Which documents are usually affected by a change of state of residence?
If you move to a new state, you should check all of your estate planning documents in order to make sure that they will still be effective under the laws of your new home. Any document in your estate plan, such as a will, power of attorney, living will, or designation of health care surrogate can be rendered ineffective if the document is not compliant with your new state’s laws. The best way to make sure everything still works is to consult with an estate planning attorney in your new state.
One of the most important documents that may be affected by a change in state residence is a will. The requirements of a valid will are different from state to state. For example in Florida, it is required that a will be witnessed by two people, both of whom signed in the will in the presence of the testator (person creating the will) and each other. However, in some other states this strict requirement is more relaxed. In Maryland, for example, the witnesses do not need to sign the will in the presence of each other. Therefore, theoretically a testator in Maryland could sign the will in the presence of one witness, then take the will to another witness and reaffirm his signature in front of the second witness.
Another document that can be affected by a change in state of residence is a durable power of attorney. These documents are extremely important for allowing a trusted person to take care of your affairs if you are incapacitated or unavilable to do so. In Florida, there are several powers, called superpowers, that require the principal of the power of attorney to initial next to each power in order to grant the power to the agent. If there is not an initial next to the superpower, then the agent does not have that power under the document. Some states do not have this requirement and therefore, if you have a power of attorney from another state and you try to use it in Florida, you may run into issues with third parties accepting it.
Will my documents from other states always need updating to work in Florida?
The good news is that just because you have an estate planning document from another state, it does not mean that the document will not work in Florida. Therefore, you will not need to immediately change your estate planning documents if you move to Florida. However, there may still be issues relating to your documents that may hinder the ability to use your documents. Talking to a Florida Estate planning attorney will allow you to better understand whether you need to make any changes.
Last Will and Testament
In the case of wills, usually if the will was validly executed under the laws of the state where it was executed, the will is valid in Florida. Under section 732.502(2), Florida Statutes, “Any will, other than a holographic will or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed.” There are two exceptions to this rule, as stated in the statute. First, holographic wills are not valid in Florida, regardless of whether it was valid in the state of execution, unless it was properly witnessed as otherwise required under Florida law. If you only have a holographic will, you will need to get another will that is valid in Florida. A nuncupative will is a will that was spoken orally, not in writing. These wills are also not valid in Florida, regardless of where the will was spoken and if the spoken will was valid in that particular state.
Power of Attorney
In the case of a power of attorney, the general rule is that if the power of attorney was valid in the state where it was created, it should be valid in Florida. However, if you have a power of attorney that is valid under the laws of the state where it was executed, but maybe looks different than a typical Florida power of attorney or does not have the superpowers initialed as required in Florida, you may run into problems using it. Under section 709.201(3), Florida Statutes, “A third person who is requested to accept a power of attorney that is valid in this state solely because of this subsection may in good faith request, and rely upon, without further investigation, an opinion of counsel as to any matter of law concerning the power of attorney, including the due execution and validity of the power of attorney. An opinion of counsel requested under this subsection must be provided at the principal’s expense. A third person may reject a power of attorney that is valid in this state solely because of this subsection if the agent does not provide the requested opinion of counsel, and in such case, a third person has no liability for rejecting the power of attorney.” Therefore, if you are trying to use a power of attorney from another state, and do not have an opinion of counsel from the state where it was executed stating it is valid, the third party will not be required to accept it.
In our experience, it is always easier to just get a new power of attorney executed in Florida (in compliance with Florida law of course!) than it is to try to use a power of attorney from another state. When an agent under a power of attorney uses the document, it is typically in situations where the principal is incapacitated or otherwise unavailable. It can be a tremendous burden and expense to need to obtain an opinion letter from an attorney in another state on the validity of the power of attorney in order to use it in Florida. It is almost always easier to just get a new one in Florida that complies with Florida law.
Living Will and Designation of Health Care Surrogate
The general rule with living wills and designations of health care surrogates in Florida is that if the document was executed in compliance with the laws of the state where it was executed, it is valid in Florida. Under section 765.112, Florida Statutes, “An advance directive executed in another state in compliance with the law of that state or of this state is validly executed for the purposes of this chapter.”
While we haven’t experienced the same problems with living wills and designations of health care surrogates in our practice, it is conceivable that the same problem can arise that arises with powers of attorney. If your living will or designation of health care surrogate looks different, such as only being witnessed by one person, but was still valid in the state where it was executed, you may have trouble having it accepted by a medical provider in Florida even if it should be accepted. Again, designations of health care surrogates and living wills are typically used when the principal is incapacitated, so if a provider will not accept it, it is a serious problem. The Terri Schiavo case litigated from 1998-2005 gives you a good reason to make sure your Health Care Surrogate and Living Will are clear. We typically recommend to our clients to get a new designation of health care surrogate and living will if their existing documents from another state are not in the typical form required under Florida law.
Contact us today to schedule a free estate plan evaluation.
If you are moving to Florida from another state and have questions about whether your estate planning documents will be effective in Florida, contact us today to schedule a free estate plan evaluation. During the evaluation, one of our attorneys will review your current estate planning documents and can provide you with an idea of whether the documents will be effective in Florida. Additionally, our attorney will talk to you about your estate planning goals and whether your existing estate planning documents will achieve those goals. Our attorney will then make some recommendations for any changes to your estate plan, if any are necessary.