Estate Planning in New York

Estate Planning for Snowbirds in New York & Florida

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Estate planning and other Legal Services

Each year thousands of New Yorkers join the ranks of snowbirds by beginning to split their time between New York and Florida (or some other warmer weather location)

Snowbirds and others who split their time between multiple states face unique challenges. I focus my practice on addressing these needs, and design custom estate plans and legal strategies to protect your assets, secure beneficial tax solutions, and more.

Estate planning for Snowbirds

Estate planning is important for everyone, but snowbirds often face more legal complications than others. Snowbird estate planning can be thought of in three tiers:
  • Tier One- the basic estate planning documents for New York and Florida

  • Tier Two- Avoiding probate and ancillary probate

  • Tier Three- Domicile, or what state considers you to be a resident for tax purposes.

Tier one snowbird planning is for anyone that splits their time between New York and Florida. Tier one snowbirds should have the basic estate planning documents, (a Health Care Proxy (Declaration of Health Care Surrogate), Living Will (Declaration), and Durable Power of Attorney) for both New York and Florida. Unlike a Will, which you can only have one of, you can have a Health Care Proxy, a Living Will and a Durable Power of Attorney for New York and have their Florida equivalents, and both the New York documents and Florida documents would be valid and in effect. Also in Tier One you should make sure that your Will and/or revocable or living trust make sense for both New York and Florida. 

Snowbirds can keep their New York documents in New York and bring their Florida documents to Florida.

Florida & New York State Probate

Tier Two snowbird planning is for snowbirds who purchase a home in Florida and continue to own a home in New York. Since these snowbirds own real estate in two different states, without proper planning, their estates could need to be probated in both New York and Florida. The primary probate will be done in the state where you were a resident when you died, and a second, ancillary probate, will be done in the other state where you owned real estate. 

Ancillary probate and probate in general can be easily avoided with a proper estate plan.

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New York Residency Audits

Tier Three snowbird estate planning is for snowbirds who want to change their state residency from New York to Florida. Typically, people want to do this to avoid New York State’s high taxes imposed on residents, whether that be income or estate taxes. The key term here is “domicile”. You can have multiple residences, but you can only have one domicile. Your domicile is the state where you are a resident. This is the state you call “home”. Florida is happy to accept New Yorkers who want to be domiciled there. New York is not as happy to let go of New Yorkers who no longer want to be domiciled in New York. 

New York State is very aggressive in auditing people who change their domicile from New York to Florida (or other snowbird friendly states). New York residency audits are very fact intensive. When attempting to establish that a person is domiciled in New York, the tax auditor will look to five factors:

1. The Home

In which state do you have a nicer home? Typically, people do not live in a two-bedroom condo in Florida and vacation in a five bedroom house in New York. So, the auditor will compare the homes in both states, to see if the Florida home is as at least equal to your New York home. 

2. Active Business Involvement

Are you still managing your New York business or participating in a business solely based in New York. 

3. Time Spent in New York

How much time did you spend in New York versus other places. This is different from the 183-day rule discussed below. 

4. Items “Near and Dear

Where is your wedding album? Where are your golf clubs, jewelry, stamp collection, and other prized possessions? The argument is people keep these items in their home, not their vacation house. 

5. Family Connections

where does your spouse live? Where do your minor children live?

Even if you can prove that you are not domiciled in New York, New York State can still try to tax you as a “statutory resident”. A statutory resident is someone who maintains a permanent place of abode (meaning any place to live, whether they own that place or not) and spends in the aggregate (meaning a total of) more than 183 days of the year in New York State. Statutory residents are taxed as full time New York State residents.  

Change of Domicile & Residency Planning

There are major tax implications when maintaining residences in multiple states, so snowbirds must plan carefully to avoid residency audits and other obstacles.

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Daniel Bernard
Estate Planning Attorney

230 Park Avenue
New York, NY 10169-0075

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