Should you redo you will when you move to Florida?

Florida law says that courts in Florida will recognize a Will as valid if it is valid in the state where it was drawn up at the time it was drawn up. Keeping that in mind, the first issue is then: 1. Is your Will valid in your previous state? In most cases the Will is presumed valid. However, this issue may open up a challenge in a Will contest case. In such a situation, your heirs may have to prove the Will’s validity using an expert legal witness from your previous state. This can be a huge expense to your estate. 2. Is your Will self-proved? Even if the Will is deemed to be valid, Florida law requires it to be “proved” in order to be admitted to probate. This means that a person who has signed the Will as a witness must also sign an oath certifying that you executed the Will with the proper legal formalities and that your were competent at the time. Florida also provides that a Will may be self-proved. This happens when the testator (testatrix, if female) and the witnesses acknowledge the Will and execute a self-proving affidavit in the presence of a notary. Any Will that is self-proved may be admitted to probate without testimony of the attending witnesses. Many states do not customarily self-prove wills. In these cases the witnesses must be found and they must sign an oath before a judge, clerk or deputy clerk, or court-appointed commissioner, that the Will being offered for probate is the same Will he witnessed the decedent sign. Imagine trying to track down the person who witnessed your Will 40 years ago in Illinois. Also, even if the witness can be found, he can’t sign the oath in front of any notary. He either must sign in the presence of a deputy clerk of a Florida court or a notary commissioned by the Florida probate judge to acknowledge the oath. This procedure adds time and expense to the probate proceeding and should be avoided when possible by drawing up a new Florida Will. 3. The person named to serve as your personal representative does not qualify. Florida law requires the personal representative of your estate to either be a) a Florida resident, or b) related to you. Many people name friends form their old state in their Will to be the personal representative (or executor). If these friends are not Florida residents at the time of the administration of your estate, they will not qualify and the court may appoint someone you do not want. 4. Homestead. Florida has very strict and unusual laws regarding the distribution of homestead after a person’s death. If you are married, you can only leave the homestead to your spouse. If you try to do otherwise, the law overrules your wishes and creates a life estate in the surviving spouse and, after he or she dies, leaves your share of the homestead to your lineal descendants – whether that is what you wanted or not. 5. Does your Durable Power of Attorney comply with Florida’s new law? Florida recently revamped its durable power of attorney law. Many powers given to the attorney-in-fact (or agent) must be specifically authorized by the principal, or they may not be honored. This has the potential of leading to unwanted guardianship proceedings if you become incapacitated.

Attorney Tom Olsen: Sal, you're on news 96.5. Go ahead.

Sall: Hi,Tom.

Attorney Tom Olsen: Hey, Sal.

Sal: Hi, I had a will in my previous state of residence and I understand that that will is no longer valid in Florida, now that I live in Florida. Can the old will be just replicated by a Florida Attorney without having any changes in it?

Attorney Tom Olsen: Well, first of all, Florida law says, that if your will was legally valid when you did it in another state, it's going to be legally valid here in the state of Florida even if it does not meet our requirements. Sal, let's start by saying that your will that you have, assuming it's an original not just a plain copy, is going to be valid. Now, Sal, when I do a will for people, I do some related documents, I do a living will declaration, where you ask that you not be kept alive by machines. I do a health care surrogate, so if you're not able to you’re appointing somebody to decide what doctors, what hospitals, what medications for you. I do a financial power of attorney, so if you're not able to, you're appointing somebody to pay your bills and manage your financial affairs. Those documents are specific to Florida law, and so even if your will is still valid, we would probably still be redoing those other three related documents. Then one more thing, Sal, you've got a will but that will has nothing to do with avoiding probate. Chrissy and I are all about helping people avoid probate these days. All in all, Sal, I'd still like for you to meet with an attorney and not only get these related documents but talk about how to avoid probate and, Sal, we're all about that. We'd love to help you with that

Sal: All righty. Thanks a lot, I appreciate your help, Tom.

Attorney Tom Olsen: You're welcome, Sal. By the way, we offer free initial consult to talk about your estate and avoiding probate, even if you've got an existing will or trust bring it along with you, we'll review it for you, make sure it's still working, and again help you to take steps to avoid probate. People are still doing that these days because it's expensive. Call the Olson Law Group and schedule a free initial consult to talk to me or Chrissy, and we'll help you out with those issues at 407-423-5561, that's the Olsen Law Group in Orlando.