estate planning

Too young to have a will? Not if you have kids.

Why have your will created now? There are many reasons why putting off estate planning until you are older is a bad idea. A will allows you to decide who gets what when you pass away. If you do not have a will, Florida law controls how your assets are distributed.

First and foremost, do you have kids? One function a simple will does is appoint a guardian for your kids. This is the person or people you intend to have care for your children if you pass away. Of course, if you are married or were previously married to the other parent, your spouse/ex-spouse would take the children. This is not always the case when the parents were never married.

Something also to consider is ensuring your kids will be taken care of. Check with your insurance provider to determine the cost of life insurance. Oftentimes, they will offer a low cost solution with monthly payments. You may designate your child and/or guardian as the beneficiary of the policy. 

Is my out-of-state will valid in Florida?

Florida offers many benefits for retirees and snowbirds to stay awhile, but many wonder whether or not their will, previously executed in their last home state, is still valid once they settle in the Sunshine State.

Florida does recognize most types of wills with three exceptions. In general, a will executed by a nonresident remains valid if the will was validly executed under the laws of the place where the nonresident was at the time of the will’s execution.

Let’s say Mr. Smith moves to Florida to enjoy his golden years and brings with him a will he previously executed in North Carolina. He worries that he will need a new will drafted since he now lives in Florida full-time. The existing will was executed in accordance with North Carolina law with regard to the execution process. Each state has its own execution requirements, which usually requires a particular number of people to witness the signing of the will or to acknowledge the signature, for the signatures to be done in the presence of one another, etc. Here, if Mr. Smith’s will is valid under North Carolina law with regard the state’s execution requirements, Florida will also recognize the will, even if Florida has different execution requirements.

When does Florida not recognize an out-of-state will?

There are three exceptions to the general rule mentioned above.

First, Florida does not recognize some types of “holographic” wills. Holographic wills are those entirely in the testator’s handwriting. (A testator is the person who makes the will.) Those unrecognized by Florida are entirely in the testator’s handwriting and signed by the testator, but not executed in accordance with the Florida requirement that the will be witnessed by two attesting witnesses. So, if Mr. Smith moved to Florida with his North Carolina handwritten will that was executed without any attesting witnesses, it would not be valid in Florida, despite its validity in North Carolina. The only way Florida would look twice at Mr. Smith’s will is if it merely divvied out personal property, such as clothing, his boat and vehicles, and jewelry.

Second, if the person is a resident of Florida at the time the will is executed, the will must conform to Florida law’s execution requirements. If Mr. Smith was initially a Floridian and visited North Carolina to execute his will, this will would need to follow Florida’s requirements rather than North Carolina’s, since Mr. Smith, at the time of the will’s execution, was a Florida resident.

Lastly, imagine Mr. Smith on his deathbed, telling his family and friends how to distribute his personal property. This type of will is called an oral or nuncupative will and is recognized in a small number of states, including North Carolina. Florida does not recognize oral wills.

If you have questions about your out-of-state will and whether it can be probated in Florida, set up a consultation with Bouchard Law to review your will and discuss whether a new will is necessary.