In recent years, Florida became the number one destination for families from all over the country. With warm weather year-round and tax advantages, the Sunshine State also offers several legal tools for people who want to protect their estates for the future.
In this article, you will discover whether it is necessary to create a new trust upon moving to Florida.
Will I Need a New Trust If I Move to Florida? – Understanding the Concept
In a trust, the trust maker (also referred to as “trustor” or “settlor”) transfers the ownership of assets to a trustee (fiduciary) to benefit one or multiple beneficiaries. If someone fails to arrange a trust for moving out of the state, it may result in:
- A challenging administration for the trustee
- The triggering of unwanted taxes
- Unintentional estate planning failures
When someone creates a trust, the arrangement has a specific “situs.” The term “situs” refers to the location where the trustor created the trust, by which it is subject to jurisdiction for state taxes.
In most cases, the trust instrument has a written designation of the trust’s situs, naming the state where the trust was created. The state designated in the trust instrument is the jurisdiction where the arrangement is subject to taxation.
For example, if a trust was created in Delaware but the trustor eventually moved down to Florida, the trust is subject to Delaware’s trust laws.
Designating a Trust’s Situs in Florida – Revocable Trusts vs. Irrevocable Trusts
If there is no situs specified in the trust document, the trustor must designate it according to the statutory rules of the state where he or she is living now. For revocable trusts, it is possible to amend the trust instrument to change the trust’s situs to the new state.
Many people use irrevocable trusts for various reasons, such as special needs trusts, life insurance trusts, or charitable trusts. As irrevocable trusts do not accept amendments, changes, or modifications, it is not possible to amend the trust instrument.
In such cases, the most common solutions to change the situs of an irrevocable trust is:
- Filing for judicial modification
- Filing for non-judicial modification
- Combining multiple trusts into one trust, or
- Decanting the trust
Changing an irrevocable trust’s situs will depend on two factors – the language used in the trust instrument and the statutory provisions in the Florida Trust Code.
Considering Florida law has several tax advantages for trust owners, changing the trust’s situs to the Sunshine State is a good option for new residents. For example, Florida residents are not subject to income taxes (at the state level), estate taxes, or inheritance taxes.
If a person from another state moves to Florida, changing the trust’s situs is often the best approach. Failing to transfer the trust’s “domicile” to Florida may result in taxes filed against the trust in the trust’s original jurisdiction.