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| Monday, November 10, 2003 | (No comments posted.)
Q: I recently moved to Indiana after living in Florida for several years. While in Florida, I had a living trust, pour over will and living will prepared. Are these documents valid in Indiana?
A: I would need to see the documents to give a definitive answer. However, if you want me to venture a guess, I would say that the documents probably are valid and will be recognized in Indiana.
As a general rule, living-trust-centered estate plans are pretty sophisticated and comprehensive. One of the plans' best features are portability. Essentially, these things are designed to go with you when you move.
Indiana's trust code provides that a valid trust must bear the signatures of the settlor or his authorized agent. Terms also must be such that you can identify the trust's property, the trustee, the beneficiary, the trustees and the beneficiaries' interests and the trust's purpose. The trustee's signature accepting his or her appointment also should appear on the trust or on another document clearly stating the acceptance of the appointment.
Assuming your trust contains these necessary items, it should be valid in Indiana.
The will also is probably valid in Indiana. Indiana has a code provision that essentially says a will is valid as long as it was legally executed in the testator's domicile at the time of execution. In other words, if the will was executed properly under Florida law while you lived in Florida, Indiana will accept it as valid. However, I still would prefer to see the testator's signature and the signatures of two disinterested witnesses.
A more troubling issue for me is the living will.
Indiana has a fairly liberal living will statute, which clearly delineates a person's rights. The Indiana code even provides an acceptable form. Florida's statute appears to me to be a little less determinative. Now, keep in mind that I'm not licensed in Florida, so my information mainly comes from one of my favorite treatises, Multistate Guide to Estate Planning, by Jeffrey A. Schoenblum. I guess my real discomfort comes from varying away from a form that Indiana not only has approved, but has in fact supplied.
Having said that, your documents probably are acceptable, but I still would have them reviewed by an Indiana attorney. Even though the estate planning documents may be valid, they may include or exclude something important. For example, the trust probably contains a provision that the trust is to be governed by the laws of the state of Florida. Do you really want to be living in Indiana with a trust that is subject to Florida laws?
As I've indicated, I am assuming that an attorney drafted your documents. If my assumption is incorrect and an attorney did not create your estate planning documents, all bets are off. I wouldn't even want to venture a guess if a store-bought trust purchased in Florida is valid in Indiana.
One final thought on relying on estate documents from another state. Keep in mind that Indiana is not a community property state. If you are coming from a community property state or taking Indiana documents to a community property state, contact an attorney and get the documents reviewed.
For lack of a better term, community property laws are goofy and a professional should be consulted.
Christopher W. Yugo is a member of the Indiana Bar and a vice president and trust officer for Centier Bank's Trust Department. The opinions expressed solely are those of the writer. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN 46321.
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