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Will signed in Michigan is legal in Florida

February 23, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler,

My husband and I recently moved to Cape Coral from Michigan, and we have wills we recently signed there. The will says all assets should go to our only child, a daughter. We assume that our house would be included in the definition of "all assets." We are concerned that our wills won't be valid here, but we don't want to have them done again so soon after we made them in Michigan. We also want to avoid probate on this, so we are concerned the Michigan will won't work for this purpose.

- Annie P.

Dear Annie,

Welcome to Cape Coral! The weather certainly has not disappointed this winter, and I hope you are enjoying your new home. You should be commended by having your estate plan in order so many choose not to for a variety of reasons, leading to significant delays, costs and sometimes arguments by family members. I am pleased to advise that, if your wills were executed in accordance with Michigan law, their contents will generally be valid here in Florida. So long as nothing has changed relating to the people in your will (either heirs or personal representatives/executors), there is no need to have your will re-made.

If your will discusses "all assets" and does not make specific reference to any particular asset, then all assets, including your home and contents would be bequeathed to your daughter.

You also state that you want to avoid probate. I completely agree. However, many people do not realize that the will, in and of itself, does not avoid probate. Rather, it advises everyone, including the probate court, of your intent regarding distribution of assets. So, the Michigan will function there, as it will here in Florida all assets titled to you and your husband will pass through probate upon the death of the surviving spouse. As I have discussed in the past, there are a few ways to avoid probate on real estate holdings in Florida. An Enhanced Life Estate Deed can be prepared and recorded, naming your daughter as "remainderman", or beneficiary. These deeds can be revoked at any time, and is not considered an immediate gift to your daughter. You and your husband could sell or mortgage the property, and would not require the approval or signature of your daughter.

The other method is to set up a revocable, or grantor, trust to hold assets you wish to avoid probate. Probate fees by statute can be 3 percent of the value of the assets, plus additional costs, so a lot of expense and stress can be avoided with planning. Thanks for your question, and I hope you enjoy our best weather of the year.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.

 
 
 

 

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