Make Sure to Pack your Estate Plan on your Move to Florida
By Beckett C. Horner, J.D., LL.M. in Taxation
A cross-country move can be stressful in all aspects; purchasing a new Florida home remotely, coordinating movers, establishing utility accounts, applying for homestead, setting up bank accounts, getting unpacked, and slowly settling in are all important items on a mover’s to-do list. A common oversight in a permanent move, however, is the “relocation” of your estate plan.
Although it is likely that your old estate plan from your old state would still be valid under Florida Law (other than ‘holographic’ i.e. handwritten Wills), some aspects of Florida law may make some provisions of your old estate plan difficult to administer. For instance, under Florida Statutes Section 733.303, a Personal Representative (i.e. Executor) in Florida cannot be a convicted felon, must be 18 years of age or older, and must be mentally and physically able to perform the Personal Representative duties. Further, under Florida Statutes Section 733.304, a Personal Representative must be a resident of Florida unless such person is a related to the deceased testator. If your old Will appoints a friend from your old state as Personal Representative, chances are that friend will not qualify as Personal Representative under Florida law.
Because of the 2011 changes in Florida law to Powers of Attorney, and the implementation of other documents like Living Wills and Designations of Health Care Surrogate (which we discussed here), you may find it difficult to use those documents drafted under the laws of another state here in Florida. It is worth noting that Florida does accept out-of-state Powers of Attorney as long as such Power of Attorney was validly executed in your old state. However, the third-party relying on the Power of Attorney can request an opinion of counsel as to the Power of Attorney’s validity, and the cost of such opinion would be passed on to you as the principal of the Power of attorney (see Florida Statutes Section 709.2106(3)). So, if you became incapacitated, and your agent named in the Power of Attorney tried to use the Power of Attorney to pay some bills, write some checks, and make some deposits, the bank may require an attorney’s opinion as to the validity of your out-of-state Power of Attorney, and you would get stuck with that attorney’s bill.
In addition to the validity and efficiency of out-of-state documents, out-of-state Trusts that have been established and funded may have adverse tax consequences depending on the old state’s tax laws and the nature of the Trust. Even after you move to Florida, your old state may be able to impose state income taxes on the income made by the trust. Since Florida has no state income tax, it may be advantageous to move your trust’s situs to Florida.
If Florida is your new home, and you plan to establish permanent residency here, it is highly recommended that you take the proper steps to move your estate plan to Florida as well, just as you would your furniture, dishes, clothing, and pets. If you have any questions regarding becoming a Florida resident, establishing residency, or changing your estate plan to conform with Florida law, please do not hesitate to contact me: firstname.lastname@example.org, (772) 234-5500.