New Florida Residents Who Don't Update Estate Planning Documents May Leave a Costly Problem When Estate Planning Documents Are Needed

Florida residents must have their planning documents reviewed when they become Florida residents. Even though a new Florida resident may have a long-standing relationship with their attorney in another state, they should never have their documents revised, created or updated by anyone who is not licensed to practice law in Florida.

Florida law requires that certain documents signed by a Florida resident be signed in the presence of two witnesses:   wills, revocable trusts, prenuptial or post nuptial agreements, and powers of attorney (if the power of attorney will be used for the homestead residence.)  This applies even if the original documents were signed by someone when they were not yet a Florida resident.

The test is the state of residence at the time the document is signed.  If you are a Florida resident and sign any of these documents in another state, Florida law still requires two witnesses, even if the state where you sign does not.  It may seem like you're saving money by going back to your out-of-state attorney, but you could be paying for documents that are worthless.  Even worse, the problem may not be discovered until it's too late to correct the problem.

In addition, Florida law has strong protections for a surviving spouse. The test here is whether the first spouse to die was a Florida resident at the time of death.  The place where documents were signed doesn't make the document valid if the person was a Florida resident at the time of signing. The surviving spouse's rights are based upon Florida law even if the marriage occurred outside Florida, or the surviving spouse was not a Florida resident at the time of the first spouse's death.