Estate Planning For New Florida Residents & Snowbirds

Individuals who divide their calendars between two (or more) residences may have some special factors to take into consideration for their estate plans. Legal state of domicile will determine jurisdiction for some crucial matters, but local practicalities may also come into play. The Roulet Law Firm, P.A. serves Minnesota and Florida “snowbirds” as well as individuals who make their home in Florida year-round. Call (941) 909-4644 to speak with a member of our team in Florida, or in Minnesota call (763) 420-5087 to connect with our local office and schedule a consultation to discuss the implications multiple residences can have for your estate plan. Or, you can fill out the contact form on this page and a member of our team will reach out to you to schedule your consultation.

Determining Legal Domicile

If you are a part-time resident of Florida, your legal state of domicile – not your current physical address, which may change a few times over the course of a calendar year – will be used to determine which state will have jurisdiction over the eventual probate of your estate, and therefore whose laws will determine the legal validity of crucial estate planning documents such as a Last Will and Testament (Will). During your lifetime, as well, domicile will to a large extent determine where and under which state’s laws you should form a trust or execute a financial power of attorney. Individuals who spend only a couple of months out of the year in Florida are usually able to determine their legal state of domicile without ambiguity. For part-time Florida residents who spend roughly equal portions of their year in the Sunshine State vs. another part of the country, however, legal domicile can raise genuine questions during the estate planning process.

Within the United States, there is unfortunately no single standard that is used to determine legal domicile for individuals across all states. However, there are a few general indicators that, taken together, will often serve to clarify the issue:

Total time spent: Many states will consider you to be legally domiciled in their jurisdiction if you spend at least 183 days within the state’s borders in a calendar year. This measure can be more challenging to apply for individuals who spend significant time traveling, as they may not always spend 183 days in any single state. For individuals who are more inclined to be “homebodies” even if they maintain two or more homes, however, the calculation may be a little easier – 183 days would equate to just over half of most calendar years (excluding leap years).
Voter registration: Generally speaking, if your voter registration is up-to-date then your legal state of domicile will be the state in which you are eligible to vote – even if you usually vote by an “absentee” or mail-in ballot.
Tax filing: If you typically file state income taxes as an individual (or married filing jointly), then in most cases the state in which you file taxes and the state in which you are legally domiciled will be the same.

A Florida estate planning attorney from Roulet Law Firm, P.A. may be able to help part-time Florida residents or those who have recently moved here determine whether they are legally domiciled in Florida vs. another state. Florida “snowbirds” who happen to have their other home in Minnesota can also take advantage of our office there to help maintain continuity and get local advice, no matter which state they call home.

Probate Considerations - Choosing an Executor for Property in More Than One State

Individuals who travel frequently and spend a substantial portion of their time on the road (or in the air) often have a special set of estate planning concerns related to their powers of attorney, emergency contacts, and other designations pertaining to how (and by whom) their immediate affairs will be managed if anything goes wrong during a trip. They do not, however, generally need to worry much about their estates will be administered once they are gone; an individual in this position can often rest easy, knowing that his or her Last Will and Testament (Will) has been written and attested in accordance with the laws of the testator’s home state, and the Executor named in the Will likewise meets all the requirements for the state in which the testator is legally domiciled.

Individuals who split their year between two (or more) residences, or who own homes and assets in more than one state, will share many of the same concerns regarding emergency contacts and financial powers of attorney, medical proxy designations, and the like. However, part-time residents of multiple states may also have an additional set of questions and concerns relating to how their property, in each state and as a whole, will be handled after their deaths. Beyond preparing appropriate advance care directives and making sure that the Will is properly prepared to comply with the laws of the state that will have probate jurisdiction, these individuals may also wonder about what dealing with property in more than one state may mean for the person they name as the Executor of their Will.

Ensuring Consistency: Considerations for Naming a Sole Executor

The Florida probate process calls for the person named as Executor in the Will to request letters of administration (also known as letters of testamentary) from the Probate Court that has jurisdiction over the decedent’s estate. Before the person named as Executor can begin administration, the Probate Court must confirm the nomination made in the Will by appointing the individual to be the Personal Representative of the estate. Florida law does allow for the appointment of personal representatives who are not themselves legally domiciled in the state, but Florida Probate Code § 733.304 imposes some additional eligibility requirements on nonresident Executors.

In Florida, broadly speaking, a nonresident named as the Executor in a Florida decedent’s Will can only be appointed as the personal representative of the estate by a Florida Probate Court if the person named in the Will is a close relative, or married to a close relative, of the decedent. The laws of the testator’s state of legal domicile will generally determine how his or her estate is probated regardless of where the individual is in physical residence at their time of death, so confirming that anyone you designate as Executor in your Will meets the requirements specified by the laws of your domicile state – whether that is Florida or somewhere else – is crucial, especially if you name only one Executor.

Divide and Conquer: Considerations for Naming Co-Executors

Naming an additional executor will not in itself resolve any conflict with the requirements your state of domicile imposes on the personal representatives of decedents’ estates. For practical reasons, however, individuals who make Florida their home for part of the year may wish to consider naming co-executors, with one personal representative residing in each state where the testator spends a significant portion of his or her time. Because an executor’s duties can sometimes involve in-person property inspections and filing requirements that may be more easily managed on-location, appointing a co-executor who is local to each of your residences can significantly reduce the potential burden placed on any single executor to undertake the time and expense of potentially repeated trips out of their own state – regardless of their relationship to the testator in life. An estate planning attorney may be able to help you evaluate additional factors to consider if you are thinking of naming more than one executor.

Use a Revocable Living Trust to Avoid Probate

If you want to avoid probate, then you should consider using a trust, rather than a will, for your estate planning. This is particularly true if you own a home and/or other assets in more than one state.

If you are like many of the clients we work with, you own a home in Florida and may still own a home “back up north” and spend time in both places during the year. If you were to pass away with no plan, or with a will, your family would need to open probate in each state where you own assets and comply with the requirements in each state. That is because the courts only have jurisdiction over the assets in their state, not the assets in another state.

So for example, if you are a resident of Florida but own a home in Minnesota, your family would need to open probate in Florida for your home there and then a separate probate in Minnesota to manage your home there. This is known as an ancillary probate proceeding.

Rather than force your family to go through the expense and stress, you should consider setting up a revocable living trust to be the owner and/or beneficiary of your assets. You could set up a trust in Florida and put both your Florida home and your home “back up north” into your trust. Then, upon your passing, your family can easily manage everything without needing to go through probate in multiple states.

And if you are a resident of Florida, your trust should operate udner Florida law due to Florida's different requirements for execution of your estate planning documents and to maintain your Florida homestead. Updating your trust, will, health care documents and financial powers of attorney to Florida law may also be a factor in establishing residency in Florida for tax purposes.

Trustee Selection is Easier Than Executors Under a Will

As noted previously, each state has specific statutory requirements about who can, and cannot be, the executor of a will. Trusts have far fewer restrictions. In general, you can appoint anyone that you want to be the successor trustee of your trust as long as they are at least 18 years old and a U.S. citizen. So unlike the legal requirements for executors, there is no requirement that the trustee be a resident of the state or even a family member. You can also name co-trustees if you want.

Avoiding Probate for Savings

Many states specify the compensation to executors and personal representatives. For example, Minnesota statute section 524.3-719 provides for reasonable compensation to an executor. Florida statute section 733.617 provides for compensation based on the value of the estate as follows:

(a) At the rate of 3 percent for the first $1 million.

(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.

(d) At the rate of 1.5 percent for all above $10 million.

(3) In addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:

(a) The sale of real or personal property.

(b) The conduct of litigation on behalf of or against the estate.

(d) The carrying on of the decedent’s business.

(e) Dealing with protected homestead.

(f) Any other special services which may be necessary for the personal representative to perform.

Court costs and legal fees are in addition to the compensation provided to the executor. Since a trust does not require probate, it is often less expensive for your family to administer.

Avoiding Probate for Privacy

Probate is a public process. That means anyone can go online or down to the courthouse and pull copies of probate filings: which usually include a listing of the assets in probate and the names and contact information of family and others who will be inheriting. Third parties will often watch probate filings and then reach out to family members to “help them spend their inheritance”.

Since a trust avoids probate, it keeps your affairs private.

Advance Directives and Powers of Attorney

Some of the most familiar elements of a comprehensive estate plan, such as a valid Will, a life insurance policy, or certain types of trusts, are used primarily to determine how the property an individual leaves behind will be handled once the former owner has passed away. Advance care directives, also known as simply advance directives, are different in that they are used to convey an individual’s wishes – as the name suggests, in advance – regarding their own care and treatment in what may become their last days or hours of life. Making sure that these crucial documents will be legally valid and effective, whenever and wherever they are called for, is therefore essential to securing the peace of mind that including advance directives in an estate plan is usually intended to provide.

Medical Power of Attorney vs. Health Care Surrogate

Many states employ two distinct types of powers of attorney: a financial power of attorney that one individual (the principal) uses to authorize another person (the attorney-in-fact or agent) to carry out his or her financial affairs, and a medical power of attorney, which a principal can use to designate an agent or attorney-in-fact to make medical decisions on his or her behalf in the event of the principal’s incapacity. Florida law, under Fla. Rev. Stat. (2024) § 765.602, refers to this second type of document as a Designation of Health Care Surrogate, and places its statutory form and legal requirements under the state’s title on Civil Rights alongside the provisions for other Florida advance directives, such as a Living Will.

Slightly fewer than half of U.S. states have adopted the Uniform Power of Attorney Act and so slight variations in the terminology for very similar documents will vary somewhat by state. As the American Bar Association (ABA) explains, however, most states will typically recognize the validity of a power of attorney legally executed in another state. Individuals who have been in the habit of spending more than half the year in another state and who are now considering shifting that balance toward Florida (thereby changing their legal state of domicile) may be reassured to know that the ABA also suggests that in most cases a power of attorney that is valid when executed will remain valid even if the principal moves.

Co-Surrogates

state, to name another person who can serve as a surrogate for the individual named as your primary proxy for health care decisions. Individuals who wish to put robust advance directives in place may wish to name a co-surrogate (or co-agent) in each state where the principal maintains a residence.

In Florida, and in many other states as well, the principals creating these designations have the ability to specify in their documents whether they wish the co-agents to reach decisions by majority in case of a conflict. Individuals who divide their time between states may wish to consider discussing with an estate planning attorney whether they have the option, under the laws of their home state, to specify that the local agent should have decision-making priority.

Multiple Copies

The legal validity of advance directives is one thing; the availability of the documents is another. Beyond powers of attorney, consider filing copies of any other advanced medical directives with your local physicians and other healthcare professionals. Documents such as Living Wills, organ donation directives, and refusals of life-sustaining treatments such as “do not resuscitate” (DNR) orders are most effective when they are readily available to, and easily recognized by, the medical professionals who are most likely to have reason to act on them. Regardless of which directives you choose to put in place, making sure that your local care team has up-to-date information regarding your wishes can help to ensure that the directives you have developed within your overall estate plan function as intended, should the need arise.

Schedule a Personalized Consultation To Design Your Estate Plan

Individuals who divide their year between homes in different states often have a special set of factors to consider in their estate plans. Accurately identifying legal state of domicile is a useful first step for most people, but the complexities of managing medical contingencies and the eventual probate of an estate that includes property and other interests in more than one state can raise a number of practical concerns. The estate planning team at Roulet Law Firm, P.A. has experience in navigating these matters for year-round Florida residents as well as part-time “snowbirds” wintering in the Sunshine State, so consider scheduling a consultation to discuss your multi-residence estate plan by calling our Florida team today at (941) 909-4644. Minnesota residents can also reach us locally at (763) 420-5087 to book an appointment at our Minnetonka office. Or you can fill out the contact form on this page and a member of our team will reach out to you to schedule your consultation.

Or, if you are not yet ready to schedule a consultation and would like additional information on establishing Florida residency and estate planning, here are two resources for you:

Get your copy of my book, "The Florida Snowbird Guide: A Fast & Friendly Legal Guide for Florida Snowbirds and Relocation" where I reveal the strategies you need to know to establish residency in Florida and sever residency with your old home state for tax purposes. Click here to order a paperback copy. Or, click here to download your copy.

Join us in my upcoming masterclass where I reveal strategies I use with my private clients and their families to make it as easy and inexpensive as possible to manage their affairs. You'll discover how to avoid probate, wills vs. trusts, how to save on taxes, how to protect the money you leave for your kids in the event they get divorced and much more. Click here to join us.