Attorney
Benjamin Franklin is famously credited in saying that two things in life are certain: death and taxes. So, what happens to all of your stuff (assets, bank accounts, etc.) when you die? We’ve covered the importance of a Last Will and Testament in a few blog posts, but how does a Will get administered so that your assets get distributed properly and according to your final wishes? It all comes down to probate.
Probate is the legal process through which a deceased person’s estate is settled and distributed under the supervision of the court. In most cases, a primary (domiciliary) estate is opened where the deceased person was domiciled and/or owned property. What happens if you are domiciled and die in Texas, but you died owning a beautiful beach home in Florida? Your loved ones would likely proceed with opening probate in Texas, your state of domicile, to administer assets in that state. However, a separate probate proceeding would need to be opened in Florida to administer the Florida property. This is called ancillary probate.
Ancillary probate is a secondary probate proceeding, in addition to the primary (domiciliary) proceeding, in the jurisdiction where the out-of-state property is located. Simply put, it is a legal process that occurs when a deceased person died owning property in a state other than their state of domicile. The ancillary probate process is necessary in order to distribute the out-of-state property to the appropriate beneficiaries. In this blog post, we’ll delve into the concept of ancillary probate in Florida, its implications, and how it affects the administration of an estate.
Ancillary Probate in Florida
In Florida, ancillary probate is governed by state law, specifically by Chapter 734 of the Florida Statutes. The process involves filing a Petition for Ancillary Administration with the Circuit Court in the county where the property is located, seeking the appointment of a personal representative to administer the estate’s assets within that court’s jurisdiction, and ultimately seeking the distribution of the property to the appropriate beneficiaries.
Key Considerations for Ancillary Probate in Florida
1. Property Ownership: Ancillary probate is triggered when the out-of-state deceased person owned property in Florida. Typically, most people deal with ancillary probate in terms of real property. However, if the deceased person owned tangible personal property, such as a car or boat, in Florida then ancillary probate may be necessary to administer and distribute that personal property accordingly.
2. Exemptions: Not all out-of-state property requires ancillary probate in Florida. Certain types of property, such as bank accounts with designated beneficiaries, property held with survivorship rights, or property held in a trust, may bypass the ancillary probate process.
3. Ancillary Personal Representative: The personal representative appointed in the primary (domiciliary) probate proceeding may typically serve as the ancillary personal representative in Florida. Section 734 states that by filing the necessary, certified copies of the primary probate proceeding, that individual consents and submits to the jurisdiction of the laws and courts of the State of Florida.
4. Filing and Notice Requirements: A certified and/or exemplified copy of the primary (domiciliary) probate proceeding will be required to file along with the Petition for Ancillary Administration. This is typically requested by the Florida probate attorney when preparing the documents necessary to open the ancillary estate. While certain documents are required under Florida Statute, it is best practice to request a certified copy of all documents in the primary proceeding, this includes the Petition for Administration, Order Granting Letters of Administration, Order Admitting Will to Probate, Letters of Administration, and a certified copy of the death certificate (an original may be required).
In addition to filing requirements, all creditors and interested parties must be properly notified of the ancillary proceeding in accordance with Florida law, unless notice is waived or the creditors and/or parties are otherwise exempt or barred from all claims. It’s important to consult with a Florida probate and estate attorney to determine the proper method of notice, if any, to creditors and interested parties.
Benefits of Ancillary Probate
Ancillary probate ensures that title to the out-of-state property is properly transferred to the beneficiaries, providing them with clear and marketable title. This is especially important if the out-of-state property is being sold. Title insurance companies will require an ancillary probate proceeding in order to issue clear and marketable title to the property. Additionally, by appointing a personal representative who is otherwise qualified to serve in the State of Florida, the court can oversee the administration of the deceased individual’s assets within the state, ensuring compliance with Florida law, as well as compliance with the decedent’s final wishes concerning those assets.
While ancillary probate adds a layer of complexity to the estate administration process, it ensures that the out-of-state decedent’s assets in the State of Florida are properly transferred to the rightful beneficiaries in compliance with Florida law. If you find yourself facing the need for ancillary probate in Florida, it’s crucial to seek guidance from a qualified probate attorney to navigate the process smoothly and efficiently. If you need assistance or simply have questions, schedule a consultation with the experienced probate attorneys at Boatman Ricci by calling 239-330-1494.
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