New to Sunshine State? Don’t Forget Your Estate!
Sep 30, 2021 - Blog by Moorhead Law Group
Nearly 330,000 people became new residents of Florida between April 2020 and April 2021, as reported by Florida’s Office of Economic and Demographic Research here.
Pre-coronavirus pandemic statistics confirm that migration to Florida has been on the rise for the last few decades. But now, more than ever, folks are flocking to the sunshine state. Whether it be remote working, no state income tax, the beautiful beaches, or a combination thereof, more and more families, individuals, and businesses are declaring Florida their new domicile.
Whether you just moved to Florida, or you have been here your entire life, nearly every person needs to consider executing an estate plan. This article will address a few of the crucial aspects of Florida law pertaining to trusts, wills, powers of attorney, homestead property, and advance healthcare directives.
Execution of Trusts and Wills. Florida statute 732.502 dictates the execution requirements of wills and requires that a will be i) signed by the testator/testatrix or another person at the direction of and in the testator’s presence; ii) signed at the end; iii) signed in the presence of at least two attesting witnesses. Further, the witnesses must also sign in the presence of the testator and one another. A trust must be executed with “will formalities” pursuant to Sec. 736.0403(2)(b), F.S. If you were not a Florida resident when you signed your last will (because only a will made in your state of domicile is valid) or if your trust was signed in another jurisdiction, these documents are still valid in Florida if the execution complied with the law of the jurisdiction where they were signed.
**Fun Fact! There is no notary requirement for a will to be valid, but a good estate planning attorney can explain the benefits of a “self-proving” will.
Executor. In Florida, what most of you refer to as an Executor is actually called a Personal Representative (“PR”). And a common mistake among DIY will makers is naming someone who is not qualified to serve as PR in Florida. To qualify, a PR must be a resident at the time of your death or a blood relative or adopted child or parent. Therefore, if you have moved from out of state, your former neighbor or even a relative of our spouse that does not live in Florida will not qualify as your PR.
Power of Attorney. In accordance with Florida law, an agent named in your power of attorney may only carry out those specific powers granted. Moreover, certain powers given to an agent must be separately initialed or signed by the principal. In other words, a boilerplate document filled with general powers will likely not be effective in Florida. An estate planning attorney can advise you on the appropriate manner in which to delegate certain powers and explain the differences between the different types of powers of attorney in Florida.
Living Wills and Advance Medical Directives. These are two of the most important and most misunderstood documents you have in your plan. First, if you executed these in another state, you are wise to execute new ones when you relocate to Florida to avoid reference to another state’s statutes and ensure the inclusion of HIPAA compliance release language. Living wills are often confused with wills and living trusts, when in fact wills and trusts do not address the same matters. Your living will directs your family and medical team as to your wishes in the event your condition is terminal, and certain conditions are met as selected by you.
A final note if you recently moved and bought a primary residence in Florida – homestead exemption! Subject to limited circumstances, your primary residence is likely eligible for reduced property taxes. Moreover, your Florida homestead is protected from most judgments against the owner, and there is no cap, unlike other states.
There are many other considerations depending on a person’s unique situation. We encourage you to make that appointment for an estate plan check-up or to get started. Moorhead Law Group’s estate planning team would be delighted to work with you.
Amelia Beard is the Managing Attorney at the Santa Rosa Beach location for Moorhead Law Group.
Her practice includes all aspects of real estate transactions and disputes; probate and estate planning; business formation; and civil litigation.
To learn more about Amelia and her areas of practice, click here.