25
Sep

An Ancillary Estate: Is a Probate Required in Florida if the Decedent was a Resident in Another State?

ancillary estate floridaFlorida has a large population of snowbirds. Many people own a winter home in Florida and enjoy the sunshine from October to April, and then spend their remaining time in another state they call home. As a probate attorney, I have had the opportunity to probate many “ancillary” estates. An ancillary probate administration is required when the decedent is a resident in another state, but owns real property in the state of Florida. An ancillary estate administration is required because an out of state court does not have jurisdiction over real property in Florida. Only a Florida court has jurisdiction over real property in Florida.  Therefore, a personal representative who is appointed by an out of state court has no authority to sell the real property located in Florida and a Florida probate must be opened.

The ancillary estate is opened in the county where the real property is located. To open the estate, the personal representative must file the same initial documents that are typically required in a domiciliary proceeding in Florida; the personal representative must also submit authenticated copies of so much of the proceedings in the domiciliary estate as required under Florida law (whether it is a testate or intestate estate). Authenticated copies must be ordered from the Clerk of Court of the domiciliary estate. Authenticated documents differ from certified copies of court documents, so it is important to obtain the correct documentation.

Once opened, the ancillary estate is administered following the same steps as a domiciliary administration. Depending on the value of the estate, the estate may be a summary administration or a formal administration. If it is a formal administration, [the value of the Florida property is greater than $75,000], the personal representative must file and serve a notice of administration, an inventory, publish a notice to creditors, file and serve a statement regarding creditors, and a final accounting and petition for discharge, along with any other applicable documents. Unfortunately for the interested parties, the Florida administration is not simplified merely because it is an ancillary proceeding.

Clients often ask whether they can serve as personal representative if they are not Florida residents. An out of state personal representative may serve in Florida if he or she is related to the decedent, as defined in Florida Statutes, Section 733.304. In addition to being related, the personal representative must be otherwise qualified under Florida law to serve. Therefore, he or she must be at least 18 years of age, is mentally and physically able to perform the duties, and has no history of a felony conviction.

Because a second estate must be opened, the court costs and attorney fees are also incurred twice. Additionally, the time to close both estates may become drawn out. Being that is more expensive for the estate, cumbersome for the personal representative, and lengthy for all interested persons, any person who owns property in more than one state is a great candidate for a trust, or another tool, such as an enhanced life estate deed, to avoid multiple probate administrations.

 

Estate Planning Attorney

Elaine N. McGinnis is an established Estate Planning attorney with nearly fifteen years of experience handling Estate Planning, Probate, Trust Administration and Elder Law cases. Elaine’s clients depend on her to understand their individual needs, discuss goals, and prepare the documents appropriate for each case. Call today to schedule a consultation at (813) 676-9082 or via email to marketing@whhlaw.com.

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