Estate Planning for the New Florida Resident

Article submitted by Jim Nici of Cox & Nici, Attorney at Law.
For more information, he can be reached at 239-254-0706.

Estate and probate laws vary from state to state. Consequently, a person relocating to Florida should review the peculiarities of Florida law with a qualified Florida estate planner in order to determine the appropriateness of the current estate plan. Although you may not need to rewrite your Estate Plan, there may be good reasons for considering a revision.

1. Is Your Out-of-State Will Effective?
Most states, including Florida, recognize an out-of-state Will as valid so long as it is executed according to the requirements of the state in which it was signed. However, even if your Will was validly executed, its effectiveness should never be assumed.

2. Does Your Current Estate Plan Take Into Account Any Other State Death Taxes to Which You May be Subject?
Your estate may be subject to death taxation in another state if you own real property or other assets located in that state or if that state claims that you are domiciled there at the time of your death. Depending on the laws of that state and the type of death tax imposed, additional steps may need to be taken in order to minimize the impact of that tax.

3. Are You Taking Advantage of Your Gifting Privilege Under Florida Law?
Florida, unlike many other states, does not have a gift tax. Relocating to Florida may make it worthwhile to consider a lifetime gift program that is intended to reduce Federal estate taxes payable at your death.

4. Is Your Choice of Personal Representatives and Trustees Still Appropriate?
If your Will names an out-of-state bank or trust company as Personal Representative or Trustee, you should confirm that the bank will be permitted to qualify and exercise fiduciary powers in Florida. If your Will names a nonresident individual as Personal Representative, he or she will not be allowed to qualify in Florida unless related to you in the manner provided by Florida statute. If your Trust Agreement names an individual residing far from Florida as Trustee, it may be impractical to expect such individual to carry out his or her responsibilities.

5. Are Provisions of Your Will Subject to Different Legal Interpretations Under Florida Law?
Laws governing the interpretation of Wills vary from state to state. Your Will should be reviewed to determine whether Florida law varies from the law of your former state in any substantive way that defeats your estate planning goals. For example, you may have provisions in your Will which attempt to penalize your spouse or heirs from contesting any provisions of the Will or from exercising their rights under Florida law to receive a share of your estate. Or you may have a provision attempting to convey your Florida homestead property in an impermissible manner. Provisions of this type are unenforceable and of no effect in Florida.

6. Have You Ever Resided in a Community Property State?
Many states, unlike Florida, are community property states. Whether property is community or separate affects your and your spouse's rights in determining your income and death tax liabilities and property rights. If you are relocating to Florida from a community property state, your assets should be reviewed to determine their character so that unanticipated and undesirable tax consequences can be avoided.

7. Have You Adequately Provided for the Management of Your Assets if You Become Incapacitated?
In some states, Powers of Attorney lose their validity when the principal becomes incapacitated. In Florida they do not - if properly drafted. Consequently, it is usually advisable to sign a "Durable" Power of Attorney that appoints an individual as your agent to manage your assets in the event you can no longer do so. If you executed a Power of Attorney in your former domicile or many years ago, it should be reviewed to determine whether it is valid in Florida and whether it will survive your incapacity.

8. Have You Signed a "Living Will" or "Advance Directive For Health Care"?
Florida has enacted a law encouraging physicians and hospitals to follow the wishes of a terminally ill patient who earlier has signed a Declaration, often referred to as a "Living Will" or "Advance Directive for Health Care," requesting his or her doctor to withhold or withdraw extraordinary life support measures in the event of a terminal illness. If you have signed a Declaration in your former domicile, you should consult your Florida attorney to determine whether it complies with Florida law.

9. Have You Designated a Person to Make Health Care Decisions For You?
Florida law provides that you may designate a "Health Care Surrogate" to make health care decisions, including whether to remove life support systems, in the event you are unable to make such decisions yourself

10. Is Your Estate Plan Current?
The last decade has seen continual and substantial changes in the estate and gift tax laws and the laws relating to administration of estates and trusts that may make your current estate plan obsolete. Changes in your personal, financial and family circumstances may also require a revision of your estate plan. Accordingly, you should carefully review your estate plan with a qualified Florida attorney on a periodic basis, regardless of any change in state residence.