• 10
  • June
    2010

If you have retired to Florida, but have estate planning documents drafted in another state, you may well be wondering if those documents will have the effect you want them to have now that you are a resident of Florida.

The answer is one that can only really be given by an experienced Florida estate planning lawyer.

But, having said that, there are some common issues that can be identified:

  1. Which state's law applies? If you have a living trust drafted in another state but now you live (or eventually die) in Florida, will Florida law apply or the other state's law? Generally, the fact that your trust has a settlor, beneficiary or trustee in another state does not mean that the other state's law moves to Florida with you. If your documents designate which state's rules you want to apply, that may be enough to put your choice into effect. If they don't indicate which state's law you want to apply, the law looks at which jurisdiction has the most significant relationship to the matter at issue. This means they look at factors such as real estate ownership, residence and place of administration of the estate.
  2. Where will state income taxes be owed? This determination is less general. Florida does not impose fiduciary income tax. All states that tax the income of trusts look at: a) the residence of the testator of the trust when they died, b) residence of the trustee, c) place of administration, and d) the residence of the beneficiaries. Which law governs the trust is a separate issue from which states are going to seek to collect state income taxes.

The issues are complex, so simple and short answers are hard to give. Florida estate planning attorneys deal with these issues on a regular basis, and still often need to examine all the facts in depth, on a case-by-case basis.

  • Source: Florida Bar Journal "So you left your trust at home when you moved to Florida" 5/09                                                                                                    aar