In general, if your will was valid in your previous state, Florida will accept that will as valid. Exceptions to this rule include holographic and nuncupative wills, meaning that if your will is written and properly signed it should be upheld in a Florida probate court. However, simply being valid is not the most important thing to consider. The terms of your will also need to be enforceable. Many new residents of Florida are surprised to learn that certain terms, due to strict provisions in the Florida Probate Code, are not permitted or cannot be enforced. The following are some common areas to review.
The Personal Representative
Florida uses the term “personal representative” rather than executor, executrix, administrator or administratrix which are preferred in other states.
Florida law requires that the personal representative you choose must be either a Florida resident at the time of your death or blood relative. adopted child. parent. If the personal representative you choose is not one of the enumerated relatives, they must be a Florida resident at the time of your death or they will not be allowed to serve. In addition, this person must be eighteen or older, mentally and physically able to perform, and cannot have been convicted of a felony.
Persons whose wills devise property should be particularly attentive to the requirements for homestead property in Florida.
Florida has restrictions on how a married person may transfer homestead property after death. If the home is owned in only one spouse’s name, Florida law may require that upon that spouse’s death, the surviving spouse receives a life estate and the deceased spouse’s children will receive the remainder interest. The surviving spouse may alternatively have the right to elect to receive a one-half interest as tenants in common with the deceased spouse’s children.
For many Florida residents, either result may not be desirable. This problem may be avoided by devise of the homestead to the surviving spouse or entry into a valid pre-or post-nuptial agreement. If you do not either amend your will to comply with the statutes or have a valid agreement whereby your spouse waives their right to the homestead, the devise will be invalid. Essentially, the probate court will not recognize a provision in your will devising homestead property away from your spouse and/or children unless their rights have been waived. If you wish to devise property in this manner, it is very important to review your will with an experienced estate planning attorney to ensure it is done properly.
The Elective Share
The elective share is a principle, written into Florida law, that the decedent’s spouse should receive a minimum share of the estate – at least 30%. If, under the Last Will and Testament, the surviving spouse would receive less than 30%, that spouse may “elect” against the estate to receive their share. To calculate the estate and what the surviving spouse should receive, a certain group of assets are counted forming what is called the “augmented estate”. A spouse can waive their right to the elective share but only in the manner specified in the Florida Statutes.
Many other states have an elective share requirement but the major distinction in Florida is the type of assets and property which count towards calculating the appropriate share and the value of the elective share. If your planned devise meets a similar threshold in your old state, it may not do the same in Florida where a distinct group of assets are counted which may change the outcome.
If you have recently moved to Florida and are reviewing your estate plan, these are just a few of the items to consider so you may not want to take on this task alone! Contact Oldham & Delcamp if you want to review or create your plan – our experienced estate planning attorneys are prepared to assist.