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Location: Miami (prev. NY, Atlanta, SF, OC and San Diego)
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Greetings:
Looking at setting up a revocable living trust, but I also plan on moving to Florida in a couple of years....has anyone had an existing trust in place and then relocated?...if so, were you able to amend it to reflect the laws of your new state and was it a simple (and relatively inexpensive) process?...in other words, I do not want to have to pay $2500 now only to have to rip up my trust and start from scratch once I relocate to Florida and pay $2500 a second time in only a few years. Debating whether to proceed now or wait. Single person, no heirs, if that makes a difference. More concerned with someone (not the State) having medical power of attorney and being able to access my funds than to whom or what I leave my assets.
I cannot give you a definitive answer. I have relatives who are going through the same exact thing right now. Have NYS living trust and recently established permanent residency in Florida.
They are going to have their trust re-written rather than revised. They would then decant the original trust into the new one. In my experience, that is the best way to do it. However, most of my experience has been with irrevocable trusts. Those have tax consequences, so they really need to be set up right. I think you have a little more leeway with a revocable trust.
That said, $2,500 seem high. Somewhere around $1,500 (or less) is more the norm around here. With all the retirees doing it in Florida (and the less complicated state tax situation there) I am guessing there would be plenty of reasonably priced lawyers cranking these things out.
For simple DNRs and Power of Attorney (medical or otherwise) you can also go the "Legal Zoom" route. Those forms are sufficient for many situations. It depends how complicated your estate is.
You should ask the lawyer who drafted the current trust, and confirm his advice with a lawyer in FL.
NOTE: I am not a lawyer and this is not legal advice.
I am not an attorney but worked in a bank trust and estate division in NY. A revocable trust should be honored in all states regardless of where it was created. That said since you have not yet executed one, why not find out the NY cost vs. the Florida cost before you do? Now if you think Florida is your final destination, I would probably draw it up there, just for ease, but unless the laws have changed they should be cross honored regardless of state of origin.
Location: Miami (prev. NY, Atlanta, SF, OC and San Diego)
7,409 posts, read 6,550,878 times
Reputation: 6685
if nothing else, I found another attorney closer to where I live who will do it for $1850 (vs. the $2500 quoted earlier by a different one) so you guys already save me $650
I am not an attorney but worked in a bank trust and estate division in NY. A revocable trust should be honored in all states regardless of where it was created. That said since you have not yet executed one, why not find out the NY cost vs. the Florida cost before you do? Now if you think Florida is your final destination, I would probably draw it up there, just for ease, but unless the laws have changed they should be cross honored regardless of state of origin.
Makes sense, but there are provisions and language in trusts that are state specific. I went through this fairly recently with some irrevocable trusts. Everything was drafted to comply with state laws and codes. A consideration was given to establishing the trusts in another state - if so, it would have required different language. Different states have different codes and guidelines for the same type of trust.
The devil's always in the details. Last thing you want is a document drafted in NY and find out after the move that a Florida court will not honor it.
Also, if the trust is formed in NY and not "moved" to Florida, NY law applies and New York could (and will likely try) to collect income and/or estate tax on it. Just because the trustee/originator moved to Florida, does not necessarily mean the trust has moved to Florida. Since the purpose of a living trust is to avoid such legal complications at a difficult time, it is best to go through the formalities and re-do the paperwork.
The $1,850 sounds much more reasonable. If your needs are simple (i.e. a standard form will suffice) you could get an even better price. You might also look for an elder law attorney who is licensed in both FL and NY. He could draw up both documents at once, or maybe have something that will work in both states.
If you plan to move to Florida soon, I agree the better idea is to simply do the documents once down there. It you need something to "hold you over" get a simple will and medical instruction form online and do those yourself.
i would always re-do everything in the state i lived in . you can't assume the same documents are good in every state . i would re-do all paperwork if i moved .
Preparing and executing a valid health care proxy provides a good illustration.
The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated.
The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes.
Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make such decision. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration either in the actual health care proxy or in a separate living will.
Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place. Secondly, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again- this requires the help of someone with experience. Finally, the document must be witnessed by two individuals in order for it to be validly recognized. A person should not have his agent, spouse or child be a witness to the signing.
there are even more problems in the area of powers of attorney. The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated.
Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. Firstly, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.
The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Further, any additional powers beyond those enumerated in the statute, must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory.
Accordingly, if someone decides to cut corners and download a form from the internet, this may result in a tremendous disservice because if the form is not statutory, it does not have to be legally recognized. The power of attorney is an extremely important tool for estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied. It is imperative to have this document prepared by an experienced practitioner.
A last will and testament is yet another document that must be prepared under the supervision of a experienced attorney. After the person who executed the will dies (the “decedent”), the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process.
each state has their own way of looking at the paperwork .
Makes sense, but there are provisions and language in trusts that are state specific. I went through this fairly recently with some irrevocable trusts. Everything was drafted to comply with state laws and codes. A consideration was given to establishing the trusts in another state - if so, it would have required different language. Different states have different codes and guidelines for the same type of trust.
The devil's always in the details. Last thing you want is a document drafted in NY and find out after the move that a Florida court will not honor it.
Also, if the trust is formed in NY and not "moved" to Florida, NY law applies and New York could (and will likely try) to collect income and/or estate tax on it. Just because the trustee/originator moved to Florida, does not necessarily mean the trust has moved to Florida. Since the purpose of a living trust is to avoid such legal complications at a difficult time, it is best to go through the formalities and re-do the paperwork.
The $1,850 sounds much more reasonable. If your needs are simple (i.e. a standard form will suffice) you could get an even better price. You might also look for an elder law attorney who is licensed in both FL and NY. He could draw up both documents at once, or maybe have something that will work in both states.
If you plan to move to Florida soon, I agree the better idea is to simply do the documents once down there. It you need something to "hold you over" get a simple will and medical instruction form online and do those yourself.
Therein lies the big difference. All things being equal, I would do it in Florida, but if he may return to NY in the future I might do it in NY.
Location: Miami (prev. NY, Atlanta, SF, OC and San Diego)
7,409 posts, read 6,550,878 times
Reputation: 6685
thanks everyone for the informative replies!!....as an update, my company will pay 100% of the costs for a will and health proxy/medical power of attorney, but not a trust, through an attorney of my choice that participates in the Hyatt Legal Services network. I will use this as a bridge for the next 2-3 years (better than having nothing at all) until I move to Florida, at which time I will pay for a trust out of my own pocket.
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