It is not uncommon for New Yorkers to spend a few months in Florida or in some other state, especially during the winter season. These New Yorkers are commonly referred to as “snow-birds” or “dual residents”. If you are a dual resident, there are some relatively easy steps you should take in order to ensure proper planning for health, disability and estate matters.
A question frequently asked by people who move to other states is whether or not a last will and testament prepared and executed in New York will be valid in those other states. Generally speaking, the answer is yes, at least in Florida. The more important question is how long and complicated will the probate process be in other states. Unfortunately, while probating a will in New York is usually simple, under normal circumstances, and can be accomplished in a short period of time, that is not the case in other parts of the country. As an example, probating a will in Florida is much more complicated and can take many months, if not more than a year. Therefore, if you reside in Florida, it makes sense to avoid probate by establishing a revocable living trust.
A common misconception is that if you are a New York resident, you don’t need to worry about probating your will in Florida. The fact is that if you own real property in Florida, or in any other state for that matter, then your will must first probated here in New York. In order to transfer title to that real property, your will must also be probated in the state(s) where you own it. To avoid the cost, expense and delay of such an “ancillary probate”, you may wish to consider a living trust, at least for the real property. It can be particularly beneficial to create such a trust if you own property in Florida, as Florida law is quite conducive to such an estate planning device.
If you spend the winter months in Florida or some other state, it would also be wise to have a health care proxy, living will and durable power of attorney prepared in accordance with that state’s law. While these documents, if prepared in accordance with the laws of the State of New York, should be given effect in other states, the reality is that you may encounter reluctance on the part of institutions to accept them.
In summary, if you are a snow-bird or dual resident, you should consider a revocable living trust as an important part of your estate plan. Since there are special execution requirements for trusts under Florida law, you should seek the advice of an attorney who is licensed to practice law in Florida and New York.
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