I’m sure that I’m not alone thinking now would be a good time to be in Florida. For many New Yorkers, what starts out as a seasonal home morphs into a primary residence. Aside from the weather, Florida attracts new residents because it has a property tax increase cap on homes that are primary residences and no state income tax. New York State income tax presently graduates from 4% to roughly 8.82% on amounts above $2 million.
If you’ve been a New York resident and make Florida your new home, will your New York estate planning documents still be valid? The answer is yes. These documents will be honored if they were properly drafted and executed in the state in which they were created. However, nuances in the law of a new state may change things.
For example, Florida has a homestead rule which mandates that a primary residence cannot be transferred to anyone else if the decedent leaves behind a spouse and minor children. If there are no minor children, a surviving spouse may remain in the home for her life (so-called “life estate”) even if the house is bequeathed to someone else. If a Florida resident has a New York will leaving his primary residence to his brother, the decedent’s wife can live in it for her life, before the brother can move in. There’s more to the homestead laws, but you get the idea.
Florida’s rules on the appointment of executors is also different than New York’s. In New York, an executor must be 18 or over, not a substance abuser or a convicted felon, and a U.S. citizen. If the designated executor is a non-citizen, he can only serve if he resides in New York State. In Florida, the executor must reside in Florida, unless the person designated is related to the decedent as a child, spouse, sibling, aunt/uncle, niece/nephew or blood relative. If you move to Florida and name your best friend in New York, you’re going to have a problem.
The takeaway here is that if you move or plan to move to another state and make it your primary residence, make sure the documents you executed will be honored as written. I believe it is a good idea to sign new documents if you move because the bankers, lawyers, doctors, and others who may need them, will be unfamiliar with the form. When that happens, it may create problems you can avoid.