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Do I Need a Florida Estate Planning Lawyer to Prepare a Florida Trust?


Many people come to Florida from somewhere else. If you have relocated to Florida recently, it is a good idea to consult with a local attorney to revise your existing will or trust. Although out-of-state estate planning documents are generally valid in Florida, if you do need to make any changes, it is important to comply with this state’s probate laws. Otherwise, a court may be unable to carry out your wishes after your death.

Florida Court Invalidates Trust Amendments Due to Lack of Second Witness

Consider this recent probate dispute from the Tampa area. The subject of this case is a trust created by a now-deceased father with three adult children. The father used to live in Illinois. There, he hired a local estate planning attorney to prepare a revocable living trust under Illinois law.

A few years later after his wife had passed away, the father moved to Florida. He met a woman and purchased a house in Bradenton where the two of them lived together. Subsequently, the father executed two amendments to his original living trust. Both amendments were prepared by his Illinois lawyer, who emailed them to the father. Of critical importance, the father signed each amendment in the presence of one witness.

Under the second and final trust amendment, the father left the Bradenton home to his girlfriend. Under the terms of the original trust, the property would have passed to the three children. You can probably see where this is going. After the father died in 2015 one of the children, who was now the successor trustee, asked a probate court to declare the two trust amendments invalid, thereby negating the gift of the house to the girlfriend.

Unlike many will and trust contest cases, the trustee did not accuse the girlfriend of exercising undue influence over her father. Indeed, nobody questioned the father intended to leave the Florida property to the girlfriend. The problem was that the trust amendments themselves were not validly executed under Florida law. Under Section 736.0403 of the Florida Statutes, the “testamentary aspects of a revocable trust”–i.e., a trust provision that disposes of property to someone other than the settlor’s estate–must comply with the same requirements as that of a will.

And in Florida, a will must be witnessed and signed by at least two persons. Since there was only one witness to each of the father’s amendments, they were invalid as a matter of law, according to a July 2017 decision by the Florida Second District Court of Appeal. Accordingly, the Court enforced the terms of the original trust, which left everything to the children.

The girlfriend then filed a lawsuit against the father’s Illinois attorney, alleging his “malpractice” caused the trust amendments to fail. A federal judge in Tampa recently dismissed the girlfriend’s complaint due to lack of personal jurisdiction. But the judge left open the possibility of the girlfriend re-filing her case in Illinois.

Get Advice From a Fort Myers Trust Lawyer

Based on the court opinions in this case, it appears the Illinois attorney simply drafted a trust that complied with Illinois law, as his client requested. The fact that Florida might have different execution requirements probably never occurred to the father. This is why if you have recently relocated to Florida, it is in your best interests to speak with a Fort Myers estate planning attorney who can properly advise you on how things are done in this state. Call the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation today.


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