Wills and Such in Florida

Winter 2005 CSANews Issue 57  |  Posted date : May 25, 2007.Back to list

A question often arises as to whether persons owning property in Florida need to have a separate will to cover that property in the event of their demise. This question presupposes that they already have a will in the jurisdiction in which they are ordinarily resident on a permanent basis.

There is no need to have a separate will in Florida for the Florida-owned property. The will which the person has in Ontario, or wherever the person is ordinarily resident, covers his or her Florida property unless there is a specific provision excluding that property. Most wills refer to the disposition of "all my property," which would include the Florida property. Of course, if for whatever reason there has been an exclusion of the Florida property, then the will should be amended to include that property, or a separate will could be prepared in Florida for that property alone.

When preparing a separate will, one has to be careful that one has not replaced their entire previously prepared will. Most will contain a clause revoking all previously made wills, and that certainly would not be the intention.

In the event of the death of a person with one will who owns property in Florida in his or her name alone, or for a situation in which the ownership of the property does not go to someone through succession, such as a joint ownership with right of survivorship, the procedure is that the probate of the will in the person's home jurisdiction is confirmed by the Florida probate court. The same persons are appointed as executors as are named by the will or, in most instances, as determined by the original probate court. Thus, the Florida property is put into a situation whereby it can be legally handled by the executors.

A word of caution is appropriate to those persons who have remarried or married for the first time in whatever circumstances. A will that has been made prior to the marriage is no longer valid, and the deceased will be considered to have died without a will. The only exception is if the will was made in contemplation of the particular marriage. One can imagine a situation in which a separate will was prepared regarding Florida property, the person marries, and forgets to do a new will regarding the Florida property. That person's intentions concerning the disposition of the Florida property would be completely frustrated.

Another subject is the use of trusts, and that subject will be covered in a subsequent article. As well, Florida power of attorney rules will be reviewed. Generally, power of attorney forms prepared outside of the Florida jurisdiction, subject to some exceptions, are not valid. More on that as well in another article.