What Happens to your Will from another State when you Move to Florida?

When people move to Florida they often ask whether the estate planning documents they signed in another state are valid in Florida.  And generally, this is true. Where many run into trouble is presenting an out of state document to a local doctor’s office or trying to use a power of attorney document from out of state to complete the sale of real estate. Since the Last Will doesn’t become valid until after death, testing it ahead of time isn’t possible.

In a Last Will, there may be provisions that are in conflict with Florida law or would be governed in its home state by laws that Florida doesn’t have, such as community property. Some other examples are:

1. Florida does not allow Holographic (i.e., handwritten but without proper witnessing) or noncupative Wills (oral Wills).
2. Florida law requires that a Personal Representative designated in a Will must be either a person related as stated in FS 733.304 ( generally, related by blood) or a Florida resident.
3. If a Last Will does not include a self-proving Affidavit after the Testator/Testatrix’s signature, Florida law requires that the witnesses be located and give an Oath as to their presence at the time of signing of the Will and other execution formalities – this become much more involved with an out of state Will and requires an opinion letter from an attorney licensed to practice in the other state as to the Will’s validity.
4. 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, even if this is not the case in the state where the Will was created. Florida guardianship is expensive to open and administer.
5. 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 there is a spouse or a 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 when you move to Florida to determine the best course of action. 

Reviewing your Will periodically is always in your best interest, since life happens and circumstances often change.  The persons you named as beneficiaries or as (executor) Personal Representative may have died or become incapacitated or you may have simply changed your mind about these designations.

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