Update Your Will and Trust After Moving to Florida

Should You Update Your Will and Trust After Moving to Florida?

Many people moving to Florida have previously made a will or created a living trust. Is their existing will or trust valid in Florida? Should they make a new will or amend their living trust?

Florida law recognizes and enforces existing wills and living trusts executed in another state. Florida Statute 732.502 states that a will properly executed in another state is valid in Florida.

Living trusts are private contracts. A trust agreement properly executed in another state is enforceable in Florida, similar to all other contracts, under the full faith and credit provisions of the U.S. Constitution.

Therefore, your existing will or living trust remains legally effective after you become a Florida resident.

Reasons to Update Estate Plan After Moving to Florida

Even if your existing wills and trusts are legally valid, your should still update your estate plan after moving to Florida.

For example, Florida law provides an “elective share” for surviving spouses. A surviving spouse is entitled to 30 percent of the deceased spouse’s assets in lieu of what the surviving spouse is otherwise entitled to under the decedent’s estate plan. After a second or subsequent marriage, many people create estate plans that intentionally bypass their surviving spouse in favor of their separate children. After moving to Florida, these plans may be altered by Florida’s elective share rights of a surviving spouse.

Similarly, Florida homestead law gives a surviving spouse a life estate in the homestead when the property was titled in the sole name of the deceased spouse. The public policy underlying this law is to prevent either spouse from creating an estate plan than deprives the surviving spouse of the right to remain in their marital home.

In second or subsequent marriages, a spouse with sole title to a homestead may have drafted an estate plan in another state that devised his Florida home to his separate children, bypassing their spouse. This plan may conflict with Florida homestead law.

A new Florida resident may update their estate planning documents in a way that accomplishes their testamentary wishes in a manner consistent with Florida’s elective share rights and homestead laws.

Taxes

Living trusts typically become irrevocable in full or in part after a trustmaker’s death. Many states impose a  tax on income earned by trusts located in their state.

Florida does not tax trust income. Taxing states are apt to assert taxation on trusts created in or associated with their state even if the trustmaker or trust beneficiaries are residing in Florida.

The taxing state could argue that any trust created and executed by residents of the taxing state, or any trust with a trustee situated in the taxing state, has a sufficient connection to the taxing state to make trust income subject to the state’s trust tax laws.

Restating an existing trust after moving to Florida likely will protect the trust beneficiaries from the tax imposed by the state where the trust was first executed and where any successor trustees are located. New Florida residents coming from a state that imposes tax on trust income should consider executing a new or restated living trust in Florida and also appointing successor trustees that reside in Florida. The new or restated trust should provide that the trust agreement is subject to Florida law and Florida court jurisdiction.

Frequently Asked Questions

Do I need to update my will and trust after moving to Florida?

Yes, we recommend updating your will and trust to ensure they comply with Florida law and reflect any changes in your circumstances or wishes.

What specific updates might be needed for my will and trust in Florida?

You may need to update the executor or trustee designations, add or change beneficiaries, adjust for how Florida has no income tax, and ensure compliance with Florida’s homestead laws.

Do I need to change my durable power of attorney and healthcare directives?

No, it is not required. However, updating these documents can ensure they comply with Florida statutes and are recognized by healthcare providers and financial institutions in the state.

How does Florida’s homestead exemption affect my estate plan?

Florida’s homestead exemption provides significant asset protection and tax benefits for your primary residence, which should be considered in your estate planning documents.

Jon Alper

About the Author

I’m a nationally recognized attorney specializing in asset protection planning. I graduated with honors from the University of Florida Law School and have practiced law for almost 50 years.

I have been recognized as a legal expert by media outlets such as the New York Times and the Wall Street Journal. I have helped thousands of clients protect their assets from creditors.