WHAT HAPPENS TO YOUR WILL FROM ANOTHER STATE WHEN YOU MOVE TO FLORIDA?

When people move to Florida they often ask whether the documents they executed in another state are valid in Florida.

The general law in Florida is that if a Will is validly drafted and executed in the prior state, it is valid in Florida.   However, oftentimes there are provisions in Wills that are drafted in other jurisdictions that conflict with Florida law. 

For example, if your prior Will conflicts with the following types of Wills, or, if there are provisions or devises in your prior Will that conflict with any of the following laws in Florida, the validity of your prior Will may be adversely affected in Florida:

  1. Holographic Wills (i.e. handwritten without proper witnessing) are not valid in Florida.
  2. Noncupative Wills (i.e. oral Wills) are not valid in Florida.
  3. The Personal Representative (also known as Executor or Administrator in other states) must either be a Florida resident or a close relative in accordance with Florida law.
  4. If your prior Will does not include a self-proving Affidavit following the Testator/Testatrix’s signature, then Florida law requires that the witnesses be located and give an oath as to their presence at the time of signing the Will and other execution formalities.
  5. If more than $15,000 (or an asset worth at least that) is devised to a minor, Florida law requires that a guardianship be established with Court supervision – this is an expensive process to open and administer.
  6. Florida law does not allow a spouse to devise his/her homestead in a Will or Trust to anyone other than his/her spouse  – Florida has very strict (and unusual) laws about how one’s homestead can be devised when the person devising property has a spouse or minor child.

Therefore, certain provisions or devises may affect the validity of your prior Will in Florida.  For this reasons, even if your Will is valid in the state in which it was executed, consulting with an experienced estate planning attorney is very important. 

Reviewing your Will periodically is always in your best interest, since life happens and circumstances often change.  You may have designated as your beneficiary(ies) certain people who are no longer living, are incapacitated, who are no longer the same beneficiaries you currently wish to include in your estate planning documents, or you may have changed your mind about the percentage you wish to leave certain beneficiaries.  In addition, you may have second thoughts about the person(s) you appointed as Personal Representative (or Executor) or Trustee of your Trust or that person may no longer be available. 

Since you want to ensure that your current instructions are reflected in your estate planning documents, you should plan to meet with an experience estate planning attorney to ensure the validity of the provisions of your Will in Florida and that your prior instructions are in line with your current wishes.

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