Welcome to Florida

Welcome to Florida.  Now, can we talk?

Do you have a will?  Maybe even an estate plan?  How about a trust, designation of health care surrogate, or durable power of attorney?  Very good if you do, but, even if your plans and preferences for the handling of your estate are completely unchanged, there may be a problem (or a host of problems) with those documents, drafted in another state, under that state’s laws.

Florida’s laws are remarkably different from most other states in a number of respects.  Some wills honored in other states are absolutely not valid in Florida (such as holographic wills that lack the 2 witnesses required here).  Florida law permits self-proving wills, which, if complied with, makes it much easier to admit such wills in court.  But if you come from a state that doesn’t have such a law (or one structured differently than ours), it will be much more difficult to prove your will in court.

The powers of trustees are significantly different here than most other states.  You can probably accomplish all of the things that you wanted to, but you may have to re-work the language to make it fit with Florida law.

Powers of attorney have special rules in Florida.  Some powers you would give to your agent are considered “super-powers,” and require special documentation to prove that you actually meant to grant such powers.

Florida’s homestead laws are truly a nightmare for non-Florida attorneys.  Even we refer to homestead as Florida’s legal chameleon, as homestead means a number of different things in different contexts.  Mis-application of homestead law can destroy your estate plan.  It can also affect the real estate taxes you will pay during your lifetime, so some skill needs to be applied to such decisions.

Similarly, great thought needs to be given to the exact form of legal title in which you should take real estate.  Many people put great effort into an estate plan, and then destroy it all by writing deeds changing their title.

Probate in Florida, like many states, is often very expensive, sometimes running from about 3% to 7% of the value of the entire estate.  If you don’t have a trust in Florida, just a will, your family will likely end up going through probate.

This is just a thumb-nail list of changes that may be required in your documents to make them valid and enforceable in Florida, and there are many others, but cheer up.

The very good work you did with your up-north attorney is not lost.  All that effort at gathering information, organizing your affairs, and thinking it all through will make the job of updating your planning documents to comply with Florida law much easier.

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