Florida Retiree Uses an Out-of-State Attorney. The Result: a Failed Trust

January 10, 2019 by

Estate planning after retirement to FloridaFlorida is the number one choice among retirees to call home. Many of our transplants may not want to change the professional relationships they have established over many years.

With estate planning, that is a mistake. Just because a person’s estate planning documents work in their former home state does not mean they will work in Florida.

For example, if a trust is signed somewhere else (like Illinois), Florida law tells us it will be valid in Florida if it was validly signed in the other state. But that rule is subject to some big exceptions, including Florida’s special signing rule for revocable trusts having “testamentary” provisions, i.e. the language in a trust that states what happens when the person who made the trust dies. In those cases, the non-Florida revocable trust has to comply with Florida’s signing law for wills and trusts regardless of what the rule may be in the other state.

The case summarized below exemplifies what can happen when the Florida trust signing rules are not followed.


Florida Retiree Uses an Illinois Attorney, the Result: a Failed Trust

A retiree who moved to Florida from Illinois kept working with his Illinois estate planning attorney. The retiree’s Illinois attorney drafted an amendment to his client’s Illinois revocable trust after the client moved to Florida and established his legal residence (called domicile) in Florida. The trust amendment was signed by the former Illinois resident in the presence of two witnesses, but only one witness signed it. That is good under Illinois law, but not in Florida, as the deceased’s lady-friend learned when Florida’s Second District Court of Appeal held in Kelly v. Lindenau that the trust amendment granting her the home she shared with the deceased failed to transfer ownership to her.

Now What?

The Illinois attorney was sued for malpractice in Florida. The lawsuit wound up in federal court where the Illinois attorney tried to have the case dismissed by the court on technical grounds. It was alleged the Illinois attorney committed legal malpractice by not drafting the second amendment to the trust according to Florida law, failing to advise the deceased regarding the signing requirements of Florida law, and by failing to ensure that the second amendment to the trust was signed by two witnesses.

The court considered whether drafting a trust amendment in Illinois that fails in Florida has enough connection to Florida that the Illinois attorney could be held accountable under Florida law in a Florida court. The court answered yes. The court then considered whether the defendant Illinois attorney had “minimum contacts” with Florida, so suing him in a Florida court could proceed. The Court stated in its opinion it was a “close call”. The trust amendment’s Illinois choice-of-law clause saved the day for the Illinois attorney. The court concluded the Illinois attorney’s contacts with Florida could not satisfy due process because his law firm did not solicit business in Florida and maintained no agent or property in Florida. The Illinois attorney drafted the trust so Illinois law would govern. The court said the Illinois attorney did not avail himself of Florida law or its courts and therefore the Florida case was dismissed against the attorney.


The lesson from this case is clear.

If you are a resident of Florida, have an attorney based in Florida who regularly provides estate planning services be the person that provides you legal counsel regarding your estate plan.

If you have moved from outside of Florida, contact Stross Law Firm at (813) 852-6500 for a free 30 minute consultation to determine if your out-of-state documents are valid in Florida.