Estate Planning Considerations for the Florida Snowbird

It is snowbird season in Florida, the time of year when residents of northern states migrate to the Sunshine State to escape the harsh winters.  Florida has long been a popular destination for snowbirds wanting to spend the winters in a warmer climate, and eventually to relocate permanently.  Those who are considering purchasing a winter home in Florida, who already own a second home in Florida, or who are considering making a permanent move to Florida in the future but keep a residence up north as a summer home, must consider the impact that dividing their time and owning homes in two states may have on their estate planning.    

Many snowbirds may have an estate plan in place, but they might not have taken the steps to ensure that they are protected when they are away from their home state for long periods of time.  An individual’s estate plan, at the very least, should include a Last Will and Testament, Durable Power of Attorney, Designation of Health Care Surrogate and Living Will Declaration.    Further, if an individual decides to take up residency in Florida but such person’s Last Will and Testament reflects that the individual is resident of the former state, new Florida estate planning documents should be created indicating that such individual is now a Florida resident.

Durable Power of Attorney and Advance Health Care Directives

If you are a snowbird who resides in Florida for part of the year but are domiciled in another state, you should consider executing a set of ancillary documents, such as a Durable Power of Attorney and advance health care directives, in Florida and your home state.  Each state has different laws that govern powers of attorney and advance health care directives, and the terminology for these documents may vary under each state’s laws as well. 

A Durable Power of Attorney allows a client to name one or more individuals to act on the client’s behalf to manage and control the client’s personal and financial affairs.  Under the Florida Durable Power of Attorney statute, certain powers may only be granted to an agent by specifically initialing or signing next to the power.  

Advance health care directives allow a client to name one or more individuals to act as the client’s representatives to make health care decisions if the client becomes incapacitated.  Advance health care directives in Florida include a Designation of Health Care Surrogate and Living Will Declaration. 

The Designation of Health Care Surrogate is a document that designates a “Health Care Surrogate” who will make medical decisions for you in the event you cannot do so (e.g., give consent for your medical treatment and administering medications).

 A Living Will Declaration is used to direct hospitals and physicians to withhold heroic artificial means to prolong life when death is clearly imminent, or when you are in a persistent vegetative state or an end state condition. 

Although Florida should accept powers of attorney and advance health care directives that are valid in another state, having a Florida-specific Durable Power of Attorney, Designation of Health Care Surrogate and Living Will Declaration can assist you in avoiding any issues or holdups if a crisis arises while you are in Florida.

Becoming a Florida Resident

It is no wonder why many snowbirds decide to make Florida their permanent home.  Apart from Florida being a desirable destination due to its warm weather and beautiful beaches, being a Florida resident has a multitude of tax advantages, including:

• No state income tax;
• No state estate tax; and,
• Homestead exemption

In order to take advantage of these benefits, however, you must change your domicile to Florida.  Cutting ties with your former state of residence and changing your domicile to Florida may be easier said than done, however, our estate planning attorneys are here to help guide you through the process and update your estate plan to Florida documents after you move to Florida as a permanent resident.

Avoiding Ancillary Probate

Owning real estate in multiple states could subject your estate to multiple probates upon your death if not properly dealt with in your estate plan, because an ancillary probate is typically required in each state in which you own real estate outright which is not your state of residence.  By way of example, if you own a residence in Florida and a residence in New York.  The primary probate proceeding will be brought in your state of domicile at the time of your death and a second probate proceeding, an ancillary probate proceeding, will be brought in the other state where you owned real estate.  Transferring real property that you own in a state that is not your primary residence into a revocable trust is one way to avoid an ancillary probate proceeding.  Other planning vehicles may be available to avoid an ancillary probate proceeding depending on the situation and type of property owned. An estate planning attorney can explain these alternatives.

Giannina Smith handles estate planning and probate administration across Florida and the estate planning attorneys at Comiter, Singer, Baseman & Braun LLP serve as Snowbird Counsel to a litany of out of state clients.  If you have more than one home, or you are considering purchasing a home in Florida, and are considering changing your domicile to Florida, Ms. Smith and the estate planning attorneys at Comiter, Singer, Baseman & Braun, LLP may be reached at 561-626-2101 or toll-free at 800-226-1484.