Do I Need a Florida Will or Power of Attorney?

Spring 2009 CSANews Issue 70  |  Posted date : Apr 30, 2009.Back to list

How often the dialogue goes something like this – "We own property in Florida, and have been told that we need a Florida will to deal with that property – is that so?" The answer is a resounding "NO". Assuming that you have a will where you reside (which you should do if you haven't already), the answer is that the will which you have will probably cover the disposition of your Florida property. Most wills have a catch-all provision that takes care of any assets which you own upon your death that are not specifically mentioned in the will. That will is effective in the state of Florida, and would cover disposition of any assets that you own in the state of Florida. Therefore, you do not need a separate will for Florida.

The danger in having a separate will, which you could have if you wish, is that the wording of the will may revoke any will that you have already made. Standard wording of a will is that the first thing that is done is the revocation of any previous wills. If that clause were not deleted, you can understand the complications. As well, if you had a Florida will and you did not have a will in your place of residence, either because it was not properly executed or you had married since the execution of the prior will, making it no longer valid, the provisions of the Florida will would govern, and that may not be what you intended.

One other quirk that bears mentioning is that if the real estate property in Florida is held in joint tenancy, either with two persons on the title or possibly more, the transfer of the ownership of the property upon the death of one person is by survivorship (to the persons who survive the person who has died). This aspect of the succession has nothing to do with a will– by creating the joint tenancy, the property has been taken out of the assets which could be disposed of by will. It is wise to have Florida real estate property held in joint tenancy with right of survivorship because otherwise, in order to deal with the property after the death of the owner, a procedure called probate has to be conducted with reference to the property. Probate is the process whereby the estate of the deceased is filed with the probate court, and a judge has to appoint the person who has authority to deal with the property. This process can take up to a year, as the probate court is very busy because so many people die in Florida. Thus, if property is held by one person alone, say, after the death of a spouse, it is wise to add another person to the title as a joint owner (with right of survivorship). Otherwise, it would be governed by the provisions of a will.

POWER OF ATTORNEY is another matter. You should have a Florida power of attorney prepared by a Florida lawyer who is knowledgeable about such things. A power of attorney enables someone to act on your behalf when you are unable to do so. A will is for after you have died and a power of attorney is for while you are alive, but incapacitated in some way such that you are unable to act on your own behalf. The reason for needing a particular power of attorney for Florida is that the law relating to the creation of a power or attorney is very specific as to what wording, or what subject has to be covered in the wording of the power of attorney. Without that particular wording, the document is invalid. There may be special circumstances in which a power of attorney prepared outside of Florida would be recognized, but when a crisis occurs, you do not want to be in the position of having to review all of the circumstances of the other power of attorney to see if it will be recognized. Usually, one prepared in Florida is restricted for use only in Florida, such that any other power of attorney which you have is still operable otherwise.

Any questions regarding this matter can be referred to the Canadian Snowbird Association at 1-800-265-3200.