Why New Florida Residents Should Update Their Estate Plan

Welcome to Florida!  (Don't Forget to Update Your Estate Plan).

Many Floridians move to Florida after developing strong bonds with professionals in another state.  Like many other states, Florida has unique laws intended to protect Florida residents who make wills, trusts, and other estate plans.  One unique aspect of Florida law is that the parts of a trust that remain in effect after the death of the person who created the trust are treated like a will.  To ensure that a will reflects the true intent of the person making a will, section 732.502, Florida Statutes, requires that the will be signed in the presence of two witnesses. Section 736.0403, Florida Statutes, applies the same rule applies to the "testamentary" aspects of a trust executed by a Florida resident.

In Kelly v. Lindenau, 223 So. 3d 1074 (Fla. Dist. Ct. App. 2017), a Florida resident returned to Indiana and asked  his Illinois attorney, on two occasions, to prepare amendments to his trust.  Florida law recognized the validity of the trust signed while he was a Florida resident. However, the amendments were signed after he became a Florida resident.  Although the amendments would have been valid under Illinois law, Florida law requires two witnesses to a trust or a trust amendment signed by a Florida resident.  As a result, the appeals court found that the amendments were not valid.

This is one example of the importance of working with an attorney in your state of residence. Our firm policy is to advise clients to seek the advice of a licensed attorney in the state where a former client becomes a resident.  Unfortunately, we have seen situations where a Florida resident failed to update their planning documents after becoming a Florida resident, resulting in avoidable costs and delays for the individual's family when the documents need to be used.