Florida Probate Litigation Lawyer Blog
When a loved one who lived in another state passes away, families often assume that the probate proceeding in the decedent’s home state takes care of everything the decedent owned, wherever the property happened to be located. In many cases, this assumption is wrong. Each state applies its own law to property located within that state, so when a non-resident dies owning assets in Florida, a separate, secondary probate proceeding called an “ancillary administration” is often required to address the Florida assets. Understanding when ancillary administration is required, how it works, and how it can sometimes be avoided is essential for any non-resident owning Florida assets, and for the families they leave behind.
Ancillary administration is the secondary probate proceeding required in Florida when a non-resident of Florida dies owning Florida property in their own name. The “primary” or “domiciliary” probate is opened in the decedent’s home state and addresses the decedent’s property owned there, and often any “intangible” assets, such as bank accounts, the decedent may have held in other states. The Florida ancillary probate runs alongside the domiciliary administration and addresses the Florida property, including any real property located in Florida and “tangible personal property,” such as vehicles, boats, furniture, etc. that may be located in Florida. The most common type of property addressed through a Florida ancillary probate administration is real estate, whether that be a vacation home, an investment property, or simply a piece of land.
Take a simple example. Suppose Janet, a lifelong resident of Ohio, passes away owning a condominium in Miami titled solely in her own name. Janet has a valid Last Will and Testament, and her family promptly opens a domiciliary probate administration in Ohio. Even though a court in Ohio would have full authority to administer Janet’s Ohio assets, and potentially intangible assets located in other jurisdictions, it would have no authority to administer the Miami condo. To properly administer the Miami condo, the family would need to open an ancillary probate administration in Miami-Dade County, Florida and have a personal representative (what Florida calls an “executor” or “administrator”) appointed in Florida to deal with the condo. The result is two probate proceedings in two states running at the same time, with two sets of court filings (and two sets of legal fees), all before Janet’s beneficiaries can take clean title to the Miami condo.
With proper estate planning, ancillary administration can potentially be avoided altogether. For example, a non-resident of Florida who owns Florida real property may consider transferring title to their Florida real property into a revocable trust during their life, such that the Florida property bypasses probate altogether. Additionally, the non-resident could title the Florida property jointly with another individual with rights of survivorship, in which case the full ownership of the property would pass automatically to the surviving joint owner by operation of law upon the first owner’s death. Returning to our example, had Janet placed her Miami condo in a revocable trust, or titled it jointly with rights of survivorship with one of her children, the condo could have passed to her chosen beneficiaries without any Florida court involvement at all.
In short, ancillary administration is one of those situations where advance planning can save a family substantial time and expense down the road, and where the absence of planning can mean a second probate in a second state. Knowing the rules ahead of time, and putting the right structures in place, is well worth the effort.
The Miami estate planning and probate attorneys at Chepenik Trushin LLP are ready, willing, and able to assist with any estate planning, probate administration, or ancillary administration needs. Please give us a call today at 305-981-8889.
