What Long Island Residents With Florida Property Must Know
Many Long Island families spend winters in Florida while keeping their primary residence in New York. This seasonal arrangement often becomes permanent or semi-permanent, raising complex estate planning questions.
If you own real estate in both states, deciding whether to have two wills is not straightforward. The wrong approach can cause delays, increased costs, and confusion for your family.
As estate planning attorneys in Suffolk County, we help New York snowbirds achieve clarity, efficiency, and tax awareness in their planning. Understanding the interaction between New York and Florida probate laws is essential before making any decisions.
Why Owning Property in Two States Creates Probate Issues
When you die owning real property, probate typically occurs in the state where you are domiciled at death. In New York, probate proceedings are governed by the Surrogate’s Court Procedure Act, and wills are admitted to probate under the New York Surrogate’s Court Procedure Act (SCPA) § 1402. If you are domiciled in New York and own real estate in Suffolk County, your will would be probated in the Suffolk County Surrogate’s Court.
However, Florida real estate is subject to Florida probate law. Under Florida Statutes § 734.102, if a nonresident dies owning property in Florida, an ancillary administration may be required. That means your executor may have to open a second probate proceeding in Florida solely to transfer your Florida property.
Ancillary probate adds time, legal fees, and administrative burdens. For snowbirds who own a condominium, vacation home, or investment property in Florida, the risk of dual probate is real unless proactive planning is in place.
Do You Actually Need Two Wills?
In some cases, two separate wills can be appropriate. One will govern New York assets, and another will govern Florida property. The key is careful drafting to ensure the documents do not revoke each other. Poor coordination can cause one will to invalidate the other, leading to unintended consequences.
New York law permits a will to revoke prior wills under New York Estates, Powers and Trusts Law (EPTL) § 3-4.1. Florida law similarly recognizes revocation by subsequent instrument under Florida Statutes § 732.505. If two wills are not drafted with precision to limit their scope to property in each state, revocation clauses can lead to litigation and confusion.
For that reason, we often recommend alternatives before using a two-will strategy.
Using a Revocable Living Trust to Avoid Ancillary Probate
A revocable living trust can eliminate the need for probate in both states if properly funded. In New York, trusts are authorized under EPTL § 7-1.17, which outlines execution requirements. Florida recognizes revocable trusts under Florida Statutes § 736.0402.
If your Florida property is titled in the name of your trust, probate in Florida may be avoided entirely. The same applies to New York property placed in the trust. Upon death, the successor trustee can transfer property without court supervision, saving time and expense.
For many snowbirds, this approach is more efficient than maintaining two separate wills.
Domicile and Estate Tax Considerations
Snowbirds must also consider domicile and estate tax consequences. New York imposes a state estate tax under New York Tax Law § 952, with an exemption amount that is significantly lower than the federal exemption. Florida, by contrast, does not impose a separate state estate tax.
Changing domicile to Florida can reduce state estate tax exposure, but domicile requires more than filing a declaration. Courts examine factors such as time spent in each state, voter registration, driver’s license, homestead filings, and intent.
Florida’s homestead protections, found in Article X, Section 4 of the Florida Constitution, provide significant creditor protection and restrictions on devise. However, homestead rules can complicate estate planning if not addressed properly in a will or trust.
What Happens If You Do Nothing?
If you die domiciled in New York with Florida real estate and only have a New York will, your executor may face:
- Primary probate in Suffolk County
- Ancillary probate in Florida
- Additional legal fees
- Delays in property transfer
- Potential conflicts between heirs
If you die without a will, New York intestacy laws under EPTL § 4-1.1 control the distribution of New York property, while Florida intestacy laws under Florida Statutes § 732.101 govern Florida real estate. That can lead to inconsistent outcomes depending on family structure.
Proper planning prevents these complications.
When Two Wills May Be Appropriate
Two wills may make sense when:
- You maintain substantial assets in both states.
- You anticipate estate litigation in one jurisdiction.
- You want separate executors for different properties.
- You seek procedural efficiency in each state.
However, this strategy must be carefully coordinated. Each will must clearly limit its authority to property located in that specific state and explicitly acknowledge the other will to avoid revocation issues.
For most Long Island snowbirds, a properly drafted revocable trust combined with a pour-over will is often more streamlined and cost-effective.
Practical Planning Steps for Snowbirds
We recommend that snowbirds:
- Review deed titling for Florida property.
- Confirm domicile status
- Evaluate estate tax exposure.
- Consider trust-based planning
- Update beneficiary designations
- Coordinate planning under both New York and Florida law.
Estate planning for snowbirds is not a one-size-fits-all process. Each family’s asset structure, tax exposure, and long-term residency goals are different. Careful coordination between states protects your family from unnecessary court involvement.
Estate Planning Frequently Asked Questions
Can I Use One New York Will To Transfer My Florida Condo?
You can use a will, but it does not avoid Florida probate. If you die domiciled in New York while owning Florida real estate in your individual name, your executor will likely need to open ancillary probate in Florida under Florida Statutes § 734.102. The Florida court will recognize the New York will, but a separate proceeding will still be required to transfer title. This results in additional court filings, legal fees, and delays. A trust-based plan or proper titling may eliminate that second proceeding.
What Is Ancillary Probate In Florida?
Ancillary probate is a secondary probate proceeding opened in Florida when a nonresident dies owning Florida property. The primary probate occurs in the decedent’s home state, but Florida requires local court supervision to transfer Florida real estate. The process follows Florida Probate Rules and relevant statutes under Chapter 734 of the Florida Statutes. It can take several months and requires Florida counsel. Planning ahead can often avoid this entirely.
Does Florida Homestead Law Affect My Estate Plan?
Yes. Florida’s homestead protections under Article X, Section 4 of the Florida Constitution restrict how homestead property can be devised if you are survived by a spouse or minor child. If your will attempts to leave homestead property in violation of these protections, litigation may follow. Snowbirds must ensure their estate documents account for Florida homestead rules even if their primary domicile is New York.
Will Changing My Domicile To Florida Eliminate New York Estate Tax?
Possibly, but domicile must be legitimate. New York tax authorities analyze multiple factors to determine true domicile. Simply spending winters in Florida is not enough. If New York determines you remain domiciled in New York, your estate could still be subject to New York estate tax under New York Tax Law § 952. A coordinated legal and tax strategy is required before making this change.
Is A Revocable Trust Better Than Having Two Wills?
In many cases, yes. A revocable trust can hold property in both states and avoid probate entirely. It reduces the likelihood of ancillary administration and simplifies asset transfer. However, the trust must be properly funded, meaning deeds and accounts must be retitled. The best structure depends on your assets and family circumstances.
Contact Bernard Law P.C. For Legal Guidance
If you own property in both New York and Florida, your estate plan must account for two legal systems. Bernard Law P.C., an estate planning attorney serving Suffolk County, helps Long Island snowbirds structure plans that reflect efficiency, originality, and quality. Our office is located in Hauppauge, New York, and we serve clients throughout Suffolk County.
Contact the Hauppauge estate planning attorney at Bernard Law P.C. at (631) 378-2500 to schedule a free consultation. Let’s ensure your estate plan protects your family in both New York and Florida.
