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Monday, March 15, 2021

A Comparison of Probate and Wills in Florida and New York

Generally speaking, if you execute a last will and testament which conforms to the requirements set by the State in which you are a resident, that will is valid in every state.  In Florida, the execution requirements are a bit more stringent than they are in New York.  Not only must the witnesses sign a self-proving affidavit in the presence of a notary, but the testator or testatrix (the person making the will) must sign as well.  New York law does not require this, which means that if a New York will is submitted for probate in Florida, you will need an affidavit by an attorney licensed to practice law in New York, stating that the will was executed in conformity with the laws in New York.  Similarly, a will executed in Florida, in accordance with Florida law, is valid in New York. Unfortunately, we have different requirements as to some of the language contained in the will, so it is likely when probating the will one will need to locate the witnesses.

While having a will probated in one state, a will which was not executed in that state, is not generally problematic, the probate process varies greatly from state to state.  Probate in New York, for example, is a quite simple process, and once the Executor is appointed, the work is basically done.  In Florida, the probate process is much more complicated, with at least triple the amount of paperwork required.  Moreover, after the Executor (called a Personal Representative in Florida) is appointed, there is a rather long process involved in "closing" the estate.

Additionally, Florida is more likely to require the posting of a bond in an ancillary proceeding, especially if the Personal Representative and/or beneficiaries do not reside in Florida.  New York is more lenient in this regard.  If one resides in New York and owns real property in Florida, when that person dies, the will needs to be probated in both places.  It is usually highly recommended that in the case of a New Yorker owning real property in Florida, that the Florida property be put into a revocable trust to avoid probate.  Lastly, in order to qualify as a Personal Representative in Florida, one must either reside in Florida or be a blood relative.

It is always a good idea, when a person changes residency or owns real property in another state, to consult with an attorney familiar with the laws of both states.  In that way, planning can be done to avoid unnecessary work and expense. 

 


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