As a Miami Lakes estate planning attorney, I regularly handle probate matters for clients who either live outside of Florida or previously lived in another state. Through my Florida counsel services, I see the same issues arise time and time again when a non-Florida will is used to administer assets located in Florida.

While a will drafted in another state may be valid, that does not mean it works effectively under Florida law. In fact, improper planning often leads to delays, additional costs, and even unintended results.

Below are three of the most common problems I see with non-Florida wills and how they can be avoided.

Naming an Out of State Personal Representative

One of the most frequent issues involves naming a personal representative who does not qualify under Florida law.

It is very common for out of state attorneys to name themselves, a colleague, or a family friend as the executor of the estate. However, Florida has strict requirements for who can serve in this role.

Under Florida Statute section 733.304, a non-resident can only serve as a personal representative if they are closely related to the decedent. This includes a spouse, certain family members, or individuals related by lineal consanguinity.

If the named personal representative does not meet these requirements, the court may not allow them to serve. This can result in delays, additional legal proceedings, and the need to appoint a different individual altogether.

This is an avoidable issue with proper Florida specific planning.

Improper Devise of Homestead Property 

Estate planning documents reviewed for Florida probate compliance

Another major issue arises when a non-Florida will attempts to devise Florida homestead property in a way that violates Florida law.

This often happens when someone moves to Florida but continues relying on estate planning documents prepared in another state.

For example, a couple may move to Florida and establish their primary residence here without updating their will. A provision that was valid in another state may no longer be enforceable once the property becomes Florida homestead.

Under the Florida Constitution, homestead property is subject to strict limitations when the decedent is survived by a spouse or minor child. A will cannot override these protections.

As a result, the intended beneficiary may not receive the property as planned. Instead, the surviving spouse may have rights such as a life estate or a fifty percent interest, regardless of what the will states.

This is one of the most common and costly mistakes I see.

Missing Self-Proving Affidavit

The third issue involves execution formalities.

Florida will generally recognize a will that was validly executed in another state. However, the process of admitting that will to probate can become significantly more complicated if it does not include a self-proving affidavit.

Without a self-proving affidavit, the court will require additional proof that the will was properly executed. This typically involves locating one of the original witnesses and having them provide a sworn statement before a clerk or judge.

In many cases, witnesses cannot be found, may have moved, or are unwilling to participate. This creates unnecessary delays and expense for the estate.

Including a self-proving affidavit is a simple step that can avoid this issue entirely. 

Takeaway Points

If you or your clients own property in Florida, especially real estate, it is important to review any existing estate planning documents.

You should consider whether the property may qualify as homestead and whether the will complies with Florida law.

If there is any possibility of relocating to Florida, the estate plan should be reviewed and updated as soon as residency changes.

Final Thoughts

A non-Florida will may be legally valid, but that does not mean it is effective in Florida.

From my experience working with clients throughout Miami Lakes and South Florida, the best approach is proactive planning that takes Florida specific laws into account.

At Gold Legacy Law, PLLC, I work closely with individuals and families to ensure their estate plans are properly structured, compliant, and aligned with their goals.

If you have questions about whether your will will work in Florida, I recommend scheduling a consultation to review your documents before issues arise.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship between you and Gold Legacy Law. For legal advice regarding your personal situation, please contact our office to schedule a consultation.