If your estate planning docs were done in another state, have the reviewed when you move to Florida
Hello, World!
Attorney Tom Olsen: I know you had an appointment this morning, somebody signing a power of attorney?
Attorney Holley Knapik: Yes. I had clients come in doing a signing of healthcare and financial power of attorney. These actually happened to be the parents of an existing client, and they made the transition. They moved from California to Florida, they'd be closer to their kids. They're getting up in age and so one of the things they needed to do was update their powers of attorney documents
Tom: Their existing will or trust was good to go still?
Holley: Good to go. They actually had a trust that is, believe it or not, funded.
Tom: Yay. All right.
Holley: [laughs] It's still in place and it's exactly the way they want things to play out upon their passing, but they needed to update their powers of attorney documents.
Tom: Sometimes people ask us, "Tom, I'm going to have Olsen Law Group do a trust for us. What happens if we move to another state?” or stated conversely, somebody had a trust done in California, they moved to Florida, do they need to, in any of those situations, will they have to redo their trust? What do you think?
Holley: That's where we say bring it in so we can review. It's going to depend on some different situations. If my clients moved to Florida and purchased property in Florida, we're definitely doing an amendment to that trust because now we need to include the fact that there's a Florida home. We have Florida Homestead Protection laws, and that needs to be reflected in the trust document.
If their plan of distribution’s changed or they've changed who their successor trustees are, those are all really good reasons to have us review, update, do amendments to your trust. But if we talk to you, ask certain questions, and it's in the affirmative, and things are working good, we may not need to do an update.
Tom: Yes, the revocable living trusts that people are using out there, they're all based on common law. All the states are based on common law, I think except for Louisiana-
Holley: Louisiana.
Tom: -and so that there's nothing about the law between state to state that would require you to redo your trust. Holley, what you’ve just brought up, in this we have to occasionally do this for this, is that if your home is owned by a trust here in the state of Florida, you have to have magic language in your trust to allow you to get the homestead exemption. Sometimes people have us amend their trust simply for the purpose of adding that magic language.
Holley: Yes, exactly.
Tom: Sometimes that alone is a reason to redo. Now the powers of attorney that you redid for them, how old were the ones that they were replacing?
Holley: Ooh, so they originally created this trust, if I'm not mistaken, it was in the early '90s.
Tom: Okay, so ancient.
Holley: Yes. In the world of powers of attorney, they were ancient.
Tom: Back before the turn of the century. When we do estate planning documents for people, nothing within the law is going to put an expiration date on those things. Sometimes they have to be changed and updated simply because people change their minds-
Holley: Correct.
Tom: -about who's taking care of business, who's making healthcare, what's happening to my wealth. However, with that said, there is one document out there that the law doesn't say it needs to be redone, but the practical matter is that it does need to be redone, and then I'm talking about--
Holley: Financial institutions, banks.
Tom: Yes. They don't like old financial powers of attorney. What's old? Five years or older.
Holley: Yes.
Tom: If you came to Olsen Law Group eight years ago and we did just a great wonderful financial power of attorney for you, is it still legally valid? Yes, but if you took it down to your bank, or your kids had to take you down to the bank, they're going to put up resistance because it's eight years old. That in and of itself is a reason to update and redo your financial powers of attorney.
Holley: Absolutely. I'm always advising clients to take your power of attorney down. If they're resistant to update it, so it was perfectly well, no problem, go share this with your financial institution and let me know what they say. Oftentimes they need an update or I don't know, Tom, you may have had the situation where they're asking for a letter from an attorney to say that this is still valid.
Tom: Yes.
Holley: That's happened a few times, yes.
Tom: Have you done such a letter?
Holley: I've done one, and that's only because I actually executed the original power of attorney and I was in constant contact with the principal and the agent, and I knew that the principal had not revoked it or--
Tom: Okay, because that's the key.
Holley: Yes.
Tom: To revoke a power of attorney or to revoke a will, all the client has to do is to take it out and rip it up, or take out a pen and-
Holley: Mark through it
Tom: -mark through it, “I hereby revoke it.” You and I wouldn't necessarily know that that’s happened so.
Holley: Exactly. I tend to not do letters, especially, when I'm dealing with someone who has powers of attorney that were drawn up in another law firm or they filled out themselves.
Tom: Sometimes, we are asked to do opinion letters-
Holley: Yes.
Tom: -and that the opinion letter, is it still effective or has it been revoked? The opinion letter is more along the lines of, “Okay, as a lawyer, I'm giving you the bank or a third-party our legal opinion that when it was done, it was perfectly legal. It complied with all the laws, it had the proper number of witnesses, it had the right notary, client signed it, et cetera, it's our opinion that it's legally valid.”
Holley: Correct.
Tom: That we have to do for sometimes for people, Holley, there is a text up here about cremation. Holley, when we do wills and trusts for people, we do ask them, “Do you want to be buried or cremated?” and we do put that in their will.
Holley: Yes, we do.
Tom: I would say 99% of the times, everything is golden and no problem. Kids either-
Speaker 3: One minute.
Tom: -knew or now know that when mom passes away, she wants to be cremated and it's an easy decision to make. If that's important to you, it'd be important to make sure that when you look at your will or trust, it has in there that you want to be buried or cremated. If you want to go further and say where you want your ashes spread or where you want your remains buried, we can put that language in there. If you've got a prepaid contract with somebody, we put that language in there as well, just to make sure everybody's on the same page.
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