THE FLORIDA CONNECTION-PART 1

People frequently ask us about how the laws in Florida affect what they do in New York. Thus is a Will signed in NY effective in Florida? Will a Health Care proxy signed using the NY form be accepted in Florida? Or, will my Power of Attorney be good in Florida?

These are just a few of the questions. Lets get some answers.

Wills and Probate. A NY Will will be recognized in Florida. If you have a simple disposition of assets upon death, you do not need a new Florida Will or a Will for Florida property. Your Will can however appoint a Florida Personal Representative if say you have property in Florida. The Florida Personal Representative is similar to the Executor in NY. One of the disadvantages of using a Will when a person has out of state real estate, such as a condo in Florida, is that an ancillary probate proceeding must occur in Florida if the Florida condo will be sold. Clients should consider a Living Trust (LT) to avoid both the Florida probate and the NY probate process. If a LT is to be effective to avoid probate, all of your property should be placed into the LT. If property is left outside the LT, probate may be necessary. Thus before you consider using an LT, make sure you understand that your assets must be retitled to the name of the LT. We can give you guidance about how that may be accomplished.

Health Care Proxy (HCP). A HCP is a writing whereby a person appoints someone to make that person's health care decisions if the person can not make his own decisions (such as when a person is very sick and can not understand very much). NY has a statutory form for this. Florida will recognize the NY HCP form and no new document need be signed in Florida.

Powers of Attorney (POA). Florida will recognize the NY form of POA. The NY form requires only that the POA be acknowledged by a notary public. Florida requires that as well. But if you own Florida real estate including a condo the power of attorney needs to be witnessed by two independent witnesses. Therefore, if you own Florida real estate, merely ask your NY attorney to prepare the POA so that it requires two witnesses as well as the notary's acknowledgment. Like NY, Florida requires that the POA specifically deal with gift giving and the creation of trusts if gifts are to be made and trusts are to be created. Again, ask your attorney to include the appropriate language.