We often talk to people who have moved to Florida and have “heard” that their Will, which was drafted and signed in another state, is no longer valid. The myth that an out of state Will is automatically invalid once you move to Florida simply is not true. A Will signed by a non-resident of Florida is valid in Florida if: (1) it complies with the Florida statutory formalities for executing a Will or (2) the Will is valid under the laws of the state where the Will was signed: UNLESS the out of state Will was either verbal or hand written. A verbal Will (like “deathbed” wishes) is not valid in Florida. In Florida a Will must be in writing to be valid. A Will in the person’s own handwriting is not valid unless it meets the formal document signing requirements of either Florida or the state in which it was signed. (If you fully understand this, you may pass “go” and collect your $200.)
BUT there is a big difference between a Will being VALID and being EFFECTIVE. Some provisions of your out of state Will may not be valid under Florida law. For example, if you named a friend or neighbor from your old home town as guardian for your minor children, that person may not be qualified to serve as guardian under Florida law. Only a Florida resident or close blood relation who resides out of state may serve as a Florida guardian. Some states recognize “common law” marriages. Florida does not. Some states have “community property” rights. Florida does not. A Will provision based on such laws may not be effective in Florida.
Additionally, even though a Will signed out of state may be procedurally sufficient, it still can be attacked on substantive grounds, such as lack of testamentary capacity or undue influence. Having to defend the validity of an out of state Will, involving out of state witnesses, can increase costs significantly.
It is not only your Will (or Trust) which might be invalid, but Florida laws concerning your other planning documents may be different from the state where those documents were signed. For example, a Power of Attorney drafted in some states loses its validity when the person who signed it becomes incapacitated. In Florida, it does not – if properly drafted. A “Living Will” drafted in another state may not comply with the particularities of Florida law. Florida law provides that you may designate a “health care surrogate” to make health care decisions for you in the event that you are unable to make those decisions for yourself.
These are just a few examples highlighting how an out of state Will might be VALID, but not EFFECTIVE. We believe that when someone moves to Florida they should consult with a Florida estate planning attorney to ensure that their estate planning documents are up to date and conform with Florida law.
If you have family, friends, or neighbors who recently have moved to Florida, please feel free to share this newsletter with them.