By: Robin Bresky, Esq. The Law Offices of Robin Bresky. Special to the Boca and Delray newspapers
You may have recently relocated to Florida or perhaps you’re thinking of moving to the Sunshine State. You may have a will or a full estate plan that was prepared by an attorney in another state, or perhaps you haven’t yet taken the important step of planning your estate. Either way, a relocation to Florida is a prime opportunity to ensure that you have an estate plan that is tailored to your current situation and will provide the best options available to you under Florida law.
Most wills that are valid in another state will be recognized in Florida. Section 732.502(2) of the Florida Statutes provides that a will “other than a holographic or nuncupative will, executed by a nonresident of Florida … is valid as a will in this state if valid under the laws of the state or country where the will was executed.” Unlike some states, Florida does not recognize holographic wills (those that are hand-written by the testator and not signed by two witnesses) or nuncupative wills (those made orally in the presence of witnesses).
Even if your will is recognized in Florida, it may not adequately reflect your current circumstance or it may not accurately express your wishes under Florida law. The presence or absence of one sentence could completely alter the interpretation. For example, the Florida Supreme Court held that the lack of a residuary clause (a “catch all” provision to distribute assets not otherwise specified) changed the meaning of a will in Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014). The maker of the will clearly wanted everything to go to her brother. Without a residuary clause, however, the property acquired after making the will was not covered by her will. The Court decided that the after-acquired property must go to different relatives as if there had been no will.
It is important to ensure that your Last Will and Testament properly expresses your intent under Florida law. Even if it does, it generally must be probated, which is an expensive, time-consuming, and tedious court proceeding, and the court records would be accessible to the public. To protect your privacy and avoid the hassle of court proceedings, a Florida estate-planning lawyer can prepare a Revocable Living Trust that would avoid probate of the assets titled in the name of the trust. The attorney can also update or create your Durable Power of Attorney, designation of Health Care Surrogate, Living Will, and nomination of a preneed guardian.
Estate planning can provide peace of mind, knowing that your affairs are arranged the way you want them—and helping to avoid costly and stressful probate and guardianship proceedings. Ideally, your estate plan should be reviewed and updated at each major milestone of life such as marriage, purchasing a home, having children, getting a promotion, retiring, or relocating. If you have relocated to the Sunshine State, a Florida lawyer can assist you in ensuring that your estate plan will carry out your wishes in the best way possible under Florida law.
Robin I. Bresky, Esq., is the founder of The Law Offices of Robin Bresky, which focuses on Estate Planning, Probate, Estate and Trust Administration, Appeals, Litigation Support, and Trial Assistance. A member of The Florida Bar since 1999, Bresky earned her Juris Doctorate degree from Chicago-Kent College of Law. To learn more, call 561-994-6273 or visit www.BreskyLegal.com.