Ancillary Probate in Florida for Out-of-State Decedents

When a person passes away owning property in a state other than the one where they lived, a separate probate proceeding may be required in that other state. This secondary proceeding is called ancillary probate. For the thousands of seasonal residents, snowbirds, and investors who own real estate or other assets in Florida but reside elsewhere, ancillary probate is a reality that families must navigate in addition to the primary probate in the decedent's home state.

What Is Ancillary Probate?

Ancillary probate is a probate proceeding conducted in a state where the decedent owned property but did not reside at the time of death. The primary, or domiciliary, probate takes place in the state where the decedent was legally domiciled. Ancillary probate runs alongside the domiciliary proceeding and deals exclusively with the assets located in the secondary state.

The purpose of ancillary probate is to give a court in the state where the property is situated the authority to transfer title to that property. Without it, real estate and other locally situated assets cannot be legally distributed to beneficiaries or sold by the estate.

When Is Ancillary Probate Required in Florida?

Ancillary probate in Florida is typically required when a non-resident decedent owned:

• Florida real property — condominiums, houses, vacation homes, undeveloped land, or commercial real estate titled solely in the decedent's name or as tenants in common
• Tangible personal property physically located in Florida, such as vehicles, boats, artwork, or furnishings

This situation is especially common among snowbirds and seasonal residents from northeastern and midwestern states who own condos or homes in South Florida. Even if the decedent's primary estate is being administered in New York, New Jersey, or another state, a Florida ancillary proceeding is necessary to transfer the Florida assets.

Florida Ancillary Administration Under F.S. 734

Florida's ancillary administration statutes are found in Florida Statutes sections 734.101 through 734.104. These provisions establish the framework for probating a non-resident decedent's Florida assets.

F.S. 734.101 provides that when a non-resident decedent leaves property in Florida, ancillary administration may be had in this state. F.S. 734.102 sets forth the procedure for initiating ancillary administration, including the requirement to file an authenticated copy of the domiciliary personal representative's appointment. F.S. 734.104 addresses the claims of creditors in ancillary proceedings.

The ancillary proceeding is governed by many of the same rules that apply to standard Florida probate, including creditor notice requirements, inventory obligations, and accounting duties.

The Ancillary Probate Process in Florida

The general steps involved in a Florida ancillary probate proceeding include:

1. Obtain an authenticated copy of the domiciliary appointment. The personal representative appointed in the decedent's home state must obtain a certified and authenticated copy of their letters of administration or letters testamentary, along with a certified copy of the will if one exists.
2. File a petition for ancillary administration. The petition is filed in the Florida county where the decedent's property is located. It must include the authenticated domiciliary documents, a description of the Florida assets, and information about the beneficiaries and creditors.
3. Appointment of an ancillary personal representative. The court appoints an ancillary personal representative to manage the Florida assets. In many cases, this is the same person serving as the domiciliary personal representative, although Florida law imposes certain residency requirements.
4. Notice to creditors. The ancillary personal representative must publish a notice to creditors and serve known creditors, following the same timeline as a standard Florida probate.
5. Administration of Florida assets. The ancillary personal representative inventories the Florida property, pays any Florida-specific debts or obligations, and ultimately distributes or transfers the assets according to the will or Florida intestacy law.
6. Closing the ancillary estate. Once all obligations are met, the ancillary personal representative files a final accounting and petition to close the ancillary estate.

Who Can Serve as an Ancillary Personal Representative?

Under Florida law, a personal representative must generally be a Florida resident or a close family member of the decedent (spouse, parent, child, or sibling). This requirement applies to ancillary personal representatives as well. However, F.S. 734.102 provides that the domiciliary personal representative may be appointed as the ancillary personal representative in Florida, even if they are not a Florida resident, provided they meet certain conditions and the court finds them qualified.

If the domiciliary personal representative cannot serve in Florida, a Florida-based attorney or a qualifying family member may be appointed to serve in that capacity.

Simplified Procedures for Non-Resident Decedents

Florida law offers simplified alternatives that may apply to smaller ancillary estates:

• Summary administration may be available if the value of the Florida estate subject to ancillary administration does not exceed $75,000, or if the decedent has been dead for more than two years.
• Disposition without administration under F.S. 735.301 may apply when the only Florida assets are exempt property or assets that are insufficient to cover the costs of administration after paying funeral expenses.

These simplified procedures can significantly reduce the time and expense of dealing with a non-resident decedent's Florida property.

How to Avoid Ancillary Probate in Florida

Proper estate planning can help non-residents avoid the need for ancillary probate in Florida entirely. Common strategies include:

• Revocable living trust. Transferring Florida property into a revocable living trust removes it from the probate estate. Upon the grantor's death, the successor trustee can transfer or sell the property without any court proceeding.
• LLC or corporate ownership. Holding Florida real estate through a limited liability company or corporation means the property is owned by the entity, not the individual. Upon death, the membership interest or shares pass through the domiciliary estate, and no Florida ancillary probate is needed.
• Joint tenancy with right of survivorship. If the property is held as joint tenants with right of survivorship or as tenants by the entirety (for married couples), it passes automatically to the surviving owner outside of probate.
• Enhanced life estate deed (Lady Bird deed). Florida recognizes enhanced life estate deeds, which allow the property to pass to a designated remainder beneficiary upon the owner's death without probate.

Each of these strategies has its own advantages, tax implications, and potential drawbacks. Working with an experienced estate planning attorney is essential to choosing the right approach.

Costs and Timeline of Ancillary Probate

Ancillary probate in Florida involves its own set of costs, separate from and in addition to the expenses of the domiciliary probate. These typically include:

• Florida court filing fees
• Attorney fees for the Florida ancillary proceeding
• Personal representative compensation
• Publication costs for notice to creditors
• Costs of obtaining authenticated copies of domiciliary documents

Attorney fees in Florida probate are governed by a statutory fee schedule based on the value of the estate. The timeline for ancillary probate generally mirrors that of a standard Florida probate, typically taking between four and eight months, though more complex estates may take longer. The creditor claim period alone requires a minimum of 90 days from the first publication of the notice to creditors.

Interaction with Domiciliary Probate

The ancillary probate in Florida operates in coordination with the domiciliary probate in the decedent's home state. The domiciliary personal representative is responsible for ensuring that the ancillary proceeding is opened and properly administered. Any Florida creditors must file their claims in the ancillary proceeding, while creditors in the home state file in the domiciliary proceeding.

After the Florida assets are administered and local obligations are satisfied, any remaining assets are typically transferred to the domiciliary personal representative for final distribution as part of the primary estate. This coordination requires careful communication between the attorneys handling each proceeding.

Contact a Florida Ancillary Probate Attorney

If a loved one who lived in another state owned property in Florida, you may need to open an ancillary probate proceeding. The attorneys at Law Offices of Albert Goodwin, PA regularly handle ancillary probate matters for families across the country whose relatives owned Florida real estate. We can coordinate with your domiciliary attorney to ensure a smooth process and help you explore options to minimize costs and delays.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.