Attorney Thomas B. Burton answers the following question: "Is My Florida Trust Valid in Wisconsin?" Attorney Burton answers a question from a viewer who has recently moved from Florida back to Wisconsin. The viewer would like to know if their trust, health care advanced directive and wills prepared in Florida are still valid in Wisconsin and what they would need to do to have all of their estate planning documents made consistent with Wisconsin law upon their move back to Wisconsin.
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Welcome back!
This is Attorney Thomas Burton and welcome back to our popular Question and Answer series!
Today's question was submitted by a viewer and thank you very much for submitting it and it has to do with changing states of residence, in regards to Estate Planning. So here's the question - "We have moved back to Wisconsin. We had our trust, health care, advance directives and wills prepared in Florida. What will we have to do to make all of this legal in Wisconsin to move forward? We were told by the attorney in Florida, we would need to have it updated to meet Wisconsin laws."
So this is an excellent question and one that I see come up whenever someone changes their state of domicile and domicile is the legal term we use to refer to where you permanently reside. So for most Americans, you choose one of the 50 states to reside in and then the test for domicile is complex but it basically means where you intend to reside, your place of permanent residence. Now with Florida, we also get into Florida having no income tax and so when I see clients sometimes move from Wisconsin to Florida, they take special steps to establish residency in Florida because the Wisconsin department of revenue does not want to lose those taxpayers and so you have to do certain things in Florida to show you're now a resident of Florida instead of Wisconsin and Florida has a rule where you need to spend six months there and they also look at where you vote, where your driver's license is, where your car is registered and where your will was executed.
So I understand you were domiciled in Florida and therefore it makes perfect sense that you did your estate planning documents there. In addition, the good thing about a trust is it's more flexible than a will. A trust is designed to hold property and it can hold property in multiple states and avoid probate, the probate court process on that property, no matter what state you live in.
Now I agree with your Florida attorney, that if you're moving back to Wisconsin permanently, meaning you intend to stay in Wisconsin for the foreseeable future, possibly until death but for now, this is where you want to stay, then you probably want to update those estate planning documents to come into compliance with Wisconsin law. Now specifically, I'm thinking about the health care directive because those documents are state specific, meaning each legislature in each state, writes the law on what's a valid health care directive, a health care power of attorney and then the health facilities in that state must follow the law. So if you're going to live in Wisconsin and stay residing here, the Wisconsin hospitals are going to be most familiar with the Wisconsin power of attorney for health care and a living will. So if it makes, if you're going to stay here and do your medical treatments here, I would recommend you think about getting that document updated. It's likely the Florida document is similar where you make choices about end of life, care, feeding tubes things like that but having the Wisconsin document executed will help if you ever need to use it in a health care facility.
Now under the constitution, the laws of one state must honor the laws of another state. So your Florida document is still valid, Wisconsin would have to honor, a Wisconsin hospital and I'm not saying they wouldn't, I'm just saying they're going to be more familiar with seeing Wisconsin documents. So for people who live in one state half of the year, in another state for half of the year, they choose where to execute that power of attorney for health care and that makes perfect sense. I know some people who have executed one in each state for the period of time that they're in each state but in general, you don't need to have two because you could be traveling in another state, let's say Colorado and you have a Wisconsin healthcare power of attorney like me, Colorado would recognize the power of attorney as long as it was validly executed in Wisconsin.
Now you're pour over will, you likely have what we call a pour over will with your trust meaning your, I haven't seen your plan but it's designed to avoid probate, so usually you execute a short version of your will called a pour over will that just pours over any assets you forgot to re-title into your trust. So that document, if you work with an attorney to update your health care documents, you could also update the pour over will at that time and instead of saying, "I have executed this will under the laws of the state of Florida", you would say, "I am executing it under the laws of the state of Wisconsin" but again, if your will was validly executed in Florida, it's still valid in Wisconsin. So if you were to die tomorrow, for example, you would still have a valid will, assuming you validly executed it in Florida.
Now the trust, I would want to look at when the trust was executed and how long ago. The longer time that's passed since you first formed it, it may need some updates. So this might be a good chance to do that when you move to Wisconsin, if you're permanently staying here but if it's relatively recent trust, then it's up to you, whether you want to redo the trust at this time or we can sometimes do what I call a restatement under Wisconsin law, saying We restate the trust and intend for it to be honored under Wisconsin law. Now again, Florida has some unique wrinkles to their estate planning, so it depends how much your trust was getting into specifics of Florida law with your planning and that's something to discuss with your attorney but likely, you could restate the trust either by restating it entirely or an amendment saying you've moved to Wisconsin and you intend for it to be interpreted under Wisconsin law.
So again, I'd have to look at it a little bit to see how much it talks about provisions of Florida law and things like that because we might want to remove some of those, if you really, if you don't intend to go back to Florida.
The other part of this would be, do you have any property still in Florida you want administered by the trust and I would want to discuss with you or discuss with your attorney, what assets you've already put into the trust. So the good news is, everything in the trust can stay in the trust, we can use the same name, the original date of execution, it just may be that you either want to make an amendment to the trust or restate the trust under Wisconsin law but again, as long as it was validly executed in the state of Florida, it's still valid now.
So you're good to think about making updates, review of the document when you move because again, if you are moving permanently and changing your domicile to Wisconsin, that would be a good time to take care of those things but in summary, primary importance, I think I would get all the documents reviewed but primarily, I would consider redoing the health care documents, in terms of priority, those because your health is what's most important. I would consider getting those done as soon as possible and if you're going to work with an attorney, it makes sense to have them review it all at one time, for efficiency's sake because at my practice, if you're going to hire me to do one thing, it's better to tell me right away, what you want done. So I can do it all at once and we can sign it all for you when you do all the updates, all at one meeting.
So I hope that's a helpful explanation to you of not only what is still valid because I believe the documents are still valid, if they've been validly executed in Florida but also what's best practice, when you look at changing permanent domicile, from one state to another.
So great question, thank you for asking. I think this will be very helpful to our other viewers, facing similar questions.
Thank you all for tuning in and we'll see you next time.
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