Ask Thomas Mitchell: Is My Trust from Another State Valid in Florida?

 

 

Summary

I’m Thomas Mitchell, partner at Waller & Mitchell in New Port Richey Florida, and I do estate and trust work.  Sometimes people ask me, “Is the trust that I had drafted for me in Ohio or Pennsylvania still valid here in Florida?”  The short answer is yes, it is still valid here in Florida.  The US Constitution has a provision in it that says states must honor the laws of other states.  It’s called the Full Faith in Credit Clause, and so if your trust was valid in the state in which it was drafted, then it will be valid here in Florida. 

Having said that, however, there are a couple of reasons why you might want to think about having it redrafted or amended once you get here to Florida.  The first is that if there happens to be any problem with the trust, if there’s a contest to it, if someone thinks you weren’t competent when you executed the trust or that you were somehow influenced to make the trust against the person who’s challenging, then all the witnesses who were there for the execution of the trust are gonna be located in Ohio or Pennsylvania or wherever it was you lived before.  So that’s the first thing. 

The second thing is you should take a look at your estate planning documents any time you have a substantial change in your life situation, and for me, moving to Florida certainly qualified as a life changing situation.  And so when that happens, you want to take a look at your estate planning documents: your will, your trust, powers of attorney, all those things.  And lastly, all the trusts that I’ve seen have in it what’s called a choice of laws clause.  What that says is this trust is to be administered pursuant to the laws of the state of Florida, or if you were in Pennsylvania when it was drafted, typically it will say the state of Pennsylvania because the lawyer that drafted it was a Pennsylvania lawyer and he knew Pennsylvania law. 

Well, now that you’re living in Florida, we don’t want to administer the trust according to Pennsylvania law because very few of us down here are going to know what that is, so that means that we’d have to associate an attorney in Pennsylvania to advise us on what the law says.  So typically when you move down here, at the very least you ought to have your trust amended so that the choice of law provision is changed to say we’re going to administer this trust pursuant to Florida law.  We’re located at 5332 Main Street in New Port Richey.  Our telephone number is 727-847-2288.  Thanks.