Every winter, thousands of residents from New York, New Jersey, Pennsylvania, Ohio, and other northern states make their way to Vero Beach and the Treasure Coast. Many of them own condominiums or homes in communities like John’s Island, Grand Harbor, The Moorings, Windsor, and along the Indian River Lagoon and Orchid Island. Some have been coming for decades. And a significant number of them are operating with estate plans that were drafted in their home state years ago and have never been reviewed by a Florida attorney.
If you spend part of the year in Florida, own property here, or are considering making Florida your permanent home, your estate plan deserves a close look. The rules that govern how your assets are distributed, who has authority over your medical and financial decisions, and how your property passes to your heirs can differ significantly depending on which state’s laws apply, and that determination is not always straightforward.
The Three-Document Foundation for Every Florida Snowbird
Regardless of where you spend most of your time, if you own property in Florida or receive any portion of your health care here, you should have three core documents in place under Florida law. At the Law Offices of Jennifer D. Peshke, P.A., we refer to these collectively as your Ancillary Estate Plan:
- Health Care Surrogate Designation, which authorizes a trusted person to make medical decisions on your behalf if you are unable to do so
- Living Will, which records your own instructions regarding life-prolonging treatment and end-of-life care
- Durable Power of Attorney, which authorizes a trusted person to manage your financial and legal affairs if you become incapacitated
If a medical emergency occurs while you are in Vero Beach for the season, a Florida hospital needs Florida-compliant documents to honor your designations without delay. Documents drafted in another state may or may not be honored, and the uncertainty can cost precious time. Having Florida versions of these three documents in place is one of the most practical steps any snowbird can take.
Domicile: The Single Most Important Decision in a Snowbird’s Estate Plan
Your legal domicile, the state where you are considered a permanent resident for legal purposes, determines which state’s laws govern your estate at death, where your will is probated, and whether your estate is subject to state estate or inheritance taxes.
Florida is one of a relatively small number of states with no state income tax and no state estate tax. For residents of states like New York, New Jersey, Massachusetts, or Illinois, which impose their own estate taxes with exemptions well below the federal threshold, establishing Florida domicile can represent significant savings for your heirs.
Establishing Florida domicile is not as simple as owning property. The process involves concrete, documented steps that demonstrate your intent to make Florida your permanent home. These typically include:
Registering to vote in Florida and canceling your registration in your prior state. Obtaining a Florida driver’s license and surrendering your out-of-state license. Registering your vehicles in Florida. Filing a Declaration of Domicile with the Indian River County Clerk of Courts, located at the Indian River County Courthouse on US-1 in Vero Beach. Applying for the Florida Homestead Exemption through the Indian River County Property Appraiser’s office before the March 1 annual deadline. Updating your professional advisors, financial institutions, and insurance carriers with your Florida address. Spending the majority of the calendar year in Florida, which is particularly important for states like New York that aggressively audit domicile claims.
If you have not taken these steps deliberately and documented them, your former state of residence may argue that you remain domiciled there, potentially subjecting your estate to taxes and probate proceedings in that state even after your death.
Will My Out-of-State Will Be Valid in Florida?
Generally speaking, a will that was validly executed under the laws of the state where it was signed will be recognized in Florida. However, valid does not mean ideal. There are several reasons why a will drafted in another state may not serve a Florida snowbird as well as it should.
First, the will may not account for assets you have acquired in Florida since it was drafted, including real estate, bank accounts, or investment accounts opened here.
Second, the personal representative named in your will may not qualify to serve in that role under Florida law. Florida Statute 733.304 restricts who may serve as personal representative of a Florida estate. With limited exceptions, the personal representative must either be a Florida resident or a close family member (spouse, child, sibling, parent). If you named a trusted friend from your home state who is not a family member, that person may be disqualified from serving.
Third, your will may not address Florida-specific planning opportunities, such as the Lady Bird deed for transferring real estate outside of probate, or the use of a revocable living trust to avoid ancillary probate proceedings on your Florida property.
Ancillary Probate: What Happens to Your Florida Property If You Have a Will from Another State
If you own real estate in Florida and your estate plan consists only of a will filed in another state, your Florida property will be subject to ancillary probate in Florida upon your death, in addition to the primary probate proceeding in your state of domicile.
Ancillary probate is a separate court proceeding opened in the Florida county where the property is located. It requires its own petition, its own filing fees, its own attorney, and its own timeline. For a Vero Beach condo on Orchid Island, a winter home in Grand Harbor, or a waterfront property along the Indian River Lagoon, this means your family will be navigating two probate proceedings simultaneously, in two different states, potentially with two different attorneys.
The good news is that ancillary probate is entirely avoidable with the right planning. A revocable living trust that holds title to your Florida property will transfer it to your beneficiaries after your death without any court involvement. A Lady Bird deed, also known as an enhanced life estate deed, is another Florida-specific tool that allows real estate to pass directly to your named beneficiaries at death while preserving your full ownership and control during your lifetime.
Either approach eliminates the need for ancillary probate and can save your family a significant amount of time, cost, and stress.
Frequently Asked Questions
Can I be considered a resident of two states at the same time? You can maintain connections to two states, but for legal and tax purposes you can only have one domicile. Proper documentation of your Florida domicile intent is essential.
Does Florida have a state estate tax? No. Florida has no state estate tax and no state inheritance tax. This is one of the primary estate planning advantages of establishing Florida domicile for residents of states that impose their own estate taxes.
If my will was drafted in New York, do I need a new one in Florida? Not necessarily, but your existing will should be reviewed by a Florida attorney. Specific provisions may not translate well under Florida law, and your personal representative may not qualify to serve. A review is far less expensive than the problems that can arise from an outdated or mismatched plan.
What is a Lady Bird deed and how does it help snowbirds? A Lady Bird deed, formally called an enhanced life estate deed, allows you to transfer your Florida real estate to named beneficiaries at your death while retaining full ownership and control during your lifetime. It avoids ancillary probate, preserves Medicaid eligibility in many cases, and costs far less to set up than a trust. It is a particularly practical tool for snowbirds who own a single Florida property and want a straightforward probate-avoidance strategy.
When should I review my estate plan as a snowbird? Any time there is a significant change in your life circumstances, including a move, a change in the amount of time you spend in Florida, a change in your assets, a marriage, divorce, or the death of a named beneficiary or representative. At a minimum, a review every three to five years is a sound practice.
Is Your Estate Plan Ready for Florida?
If you spend part of the year in Vero Beach and have not had your estate plan reviewed by a Florida attorney, now is the time. The Law Offices of Jennifer D. Peshke, P.A. works with seasonal and part-time Florida residents throughout Vero Beach, Indian River Shores, Orchid Island, and greater Indian River County to make sure their estate plans are complete, Florida-compliant, and designed to protect their families. Call us at (772) 231-1233 or reach out online.
This blog post is intended for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. Please consult a licensed Florida attorney regarding your specific situation.