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Three Common Problems We See With Non-Florida Wills

By: Jacqueline R. Bowden Gold

Our office handles probate estates for many out of state residents through our Florida Counsel services. In handling the estates there are three common problems we see with Non-Florida Wills that can easily be avoided by consulting with a Miami Estate Planning attorney. If you have a non-Florida resident who owns Florida real estate an ancillary administration may be required upon their passing.  You should consider these problems when drafting their Will:

  • Naming an out of State Attorney as Personal Representative or Executor.

This is the most common mistake we find in Non-Florida Wills. The attorney drafting the documents will be named as the Personal Representative or a family friend who does not reside in Florida. Pursuant to Florida Statute §733.304 in order to qualify to act as a Personal Representative the person appointed must be i) a legally adopted child or adoptive parent of the decedent; ii) related by lineal consanguinity to the decedent; iii) a spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or iv) the spouse of a person who otherwise qualified under this section. For more information read our blog When Can A Non-Resident Of Florida Serve As The Personal Representative For A Probate Estate? 

  • Devising Homestead Property when Decedent is Survived by Spouse or Minor Child

This is a common mistake found when an out of state resident moves their domicile to Florida without updating their Non-Florida Will. For example, John and Mary, husband and wife, move from Illinois to their beach home in Florida which has been in John’s family for over 50 years. After one winter of not having to shovel snow, John and Mary decide to make Florida their primary residence and permanently reside in the beach home.  Prior to moving they have their Estate Planning documents prepared by an Illinois attorney who leaves their beach front property to John’s brother, Sam, with the intent that the beach home remain in John’s family. At the time the Non-Florida Will was drafted, the beach home was not considered homestead for John and Mary. When John and Mary decided to declare Florida their primary residence, the devise to Sam was no longer valid under Article X, Section 4 of the Florida Constitution. Under the Florida Constitution homestead property must be devised to the spouse or minor child. Contrary to the terms in the Will, Mary will get to elect a life estate in the property or a 50% interest as tenants in common with Sam.

Note:   The Florida Supreme Court has held that that a nonlawyer (in this case a retired Illinois attorney not licensed in Florida) cannot draft a Florida will for a third party as such is the unauthorized practice of law. The Florida Bar v. Larkin, 298 So. 2d 371 (Fla. 1974).

  • Will Does not Include Self-Proving Affidavit

The execution formalities for a Will vary from state to state. Florida will recognize a Non-Florida Will if it is executed under the formalities required in the state it was drafted. However, in order to admit the Non-Florida Will it must either have: i) a Self-Proving Affidavit; or ii) the Oath of a witness to the Will, signed before a clerk, deputy clerk or judge. While not having the Self-Proving Affidavit will not make the Will invalid it is a tedious and burdensome process to obtain the Oath of Witness. Obtaining the Oath requires locating the witness and then hoping that they are willing to go before a clerk, deputy clerk or judge to sign the Oath. This is easy to avoid and the Florida Statute provides sample language under Fla. Stat. §732.503.

Take Away Points

  1.  If you have any client with Florida property consider whether such property may become homestead property if the client moves to Florida.   Homestead property enjoys unique advantages in Florida.   See Our Unique Procedure For “Probating” Florida Homestead
  2.  If the client does inform you that he or she plans to move to Florida in the near future, then the client should be advised to have a Florida attorney review the will (even if a simple pour-over will) promptly upon moving to Florida.

For more information, contact Jacqueline Bowden Gold, Miami Estate Planning attorney at (305) 556-5209 or JBowden@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami Estate Planning attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

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