There are many benefits to becoming a Florida resident in addition to our beaches, beautiful weather, & recreational activities.
Two key tax benefits that attract many of our new residents are the lack of a state estate tax and the lack of a state income tax. In Florida (unlike many of our new residents’ former states), these tax benefits are protected by the state constitution, requiring us to vote to amend the constitution in order to impose them upon ourselves.
The constitutionally protected Florida homestead law also provides benefits to Florida residents, including creditor protection (other than from secured creditors such as mortgage lenders), real estate tax savings, and a cap on future increases in tax assessed values. Throw these benefits on top of our sun and sand and it is no wonder Florida continues to be an attractive place to live and retire.
For those who have become new Florida residents, the question usually arises about the validity of the estate planning documents from their former state. In general, these documents may require a combination of tweaking, updating, or replacing.
Living Will / Health Care Surrogate / Power of Attorney
The Living Will expresses your preference to not be kept alive artificially. The Health Care Surrogate appoints a health care decision maker in the event you become unable to make your own health care decisions. A Power of Attorney allows someone to “stand in your shoes” to manage and sell assets, pay bills, deal with tax and insurance authorities, and many other duties.
These documents should almost certainly be replaced and re-written under Florida law, with one exception. Each of these documents is very specific to state law and typically must be used at a time of crisis or critical need. Accordingly, one does not want the roadblock of a bank, hospital, or brokerage firm submitting a non-Florida document to legal counsel to inquire whether it applies in Florida.
The one exception applies to your Living Will: if you continue to spend significant time in another state (i.e., you are one of our “snowbirds”), you will want to maintain a Living Will under that other state’s laws. In this situation, you do not want a doctor from another state submitting your Florida Living Will to the hospital’s legal department at a time of crisis. (And no, if you are traveling, you do not need a living will from 50 different states – you should be able to rely on your Health Care Surrogate to make whatever arrangements may be required).
Will and/or Trust
In Florida, the general rule is that if your Will or Trust was valid in the state in which it was created and executed, it will be honored in Florida. This may indicate that only a “tweak” is necessary – such as indicating Florida law will apply now that you are a resident of Florida, or making sure that your designated personal representative (or executor) will qualify in Florida.
On the other hand, Wills or Trusts that were executed many years prior may require extensive updates based upon changed circumstances, including changes in federal tax laws. In either event, your estate planning attorney can advise you at the time your Florida Living Will, Health Care Surrogate, and Power of Attorney are created.
FLORIDA ESTATE PLANNING, PROBATE, GUARDIANSHIP, & ELDER LAW IS COMPLEX AND CANNOT BE COVERED COMPLETELY IN AN ARTICLE. WHENEVER A SPECIFIC QUESTION OR PROBLEM ARISES, YOU SHOULD CONSULT AN ATTORNEY. PLEASE FEEL FREE TO CONTACT MY OFFICE TO SCHEDULE A FREE CONSULTATION: (941) 256-3965.