Clients often ask me, when they are moving to the State of Florida, or considering such a move, whether the wills which they have prepared in New York need to redone. Assuming the wills were properly drafted and executed in accordance with New York law, then the wills are valid in Florida, and in any other state for that matter. While the execution requirements are more stringent in Florida, there is absolutely no need to redo one’s New York wills, but one should be aware that when the time comes to probate the will, if that occurs in Florida, then the Court will request an affidavit from a New York attorney, stating that the will was executed properly in accordance with New York law.
While one’s New York wills are valid for Florida purposes, probate is an entirely different issue. If a former New York resident dies as a resident of the State of Florida, the law requires that the probate of the will occur in Florida. While probate in New York is quite simple, expedient, and relatively inexpensive, that is not the case in Florida. The probate process there is quite involved and lengthy; therefore, consideration should be given to this aspect. I usually recommend to my Floridians that the prepare revocable living trusts and transfer all of their property to the trusts, so as to avoid Florida probate. Of course, these trusts must be drafted and executed in accordance with Florida law.
One additional caveat is that while a New York will should be valid in all 50 states, that is not true of the health care proxy, living will and durable power of attorney. These documents tend to be very state-specific, with each state essentially having their own, preferred, forms. I therefore recommend that when a client moves to Florida, or another state, or spends a few months there, that they have prepared a second set of these documents, designed to conform to the laws of the other state. That ensures these necessary and important forms will be honored more easily in the state where they are being used.