Florida law has specific probate rules for the estate of a non-resident who dies with assets in Florida. That is why it is crucial to know where the decedent resided at the time of death and whether he or she possessed assets in Florida. Take a moment to learn how probate proceedings work for non-resident decedents, and why working with a Florida probate lawyer is essential for handling the estate of a non-resident who left assets in Florida.
Ancillary Probate Florida – An Introduction
The rules and procedures governing probate are determined at the state level. Therefore, if a Florida resident dies in Florida, the primary probate proceedings will be governed by Florida law and will take place before a Florida probate court. As provided for in Florida Statute §733.101, the first step to initiate the process is to file for probate in the county where the decedent (i.e., deceased) was domiciled.
If the decedent had no domicile in Florida (i.e., the deceased was not a Florida resident when they passed), the probate process must be initiated in the county where the decedent’s property is located. However, if the decedent was neither domiciled in Florida nor possessed property therein, probate would only apply if there was a debtor in the state (someone who still owed the decedent money upon their death).
In the event the deceased was a non-Florida resident who owned property in Florida—which is not uncommon given the Sunshine State’s nationwide appeal—the next step is to file for a separate probate proceeding called Ancillary Administration.
Ancillary Probate Administration in Florida – How Does it Work?
Also referred to as “non-domiciliary probate,” ancillary administration is a type of probate that is filed when a non-resident of Florida dies with Florida-based assets (such as real estate). Probate proceedings will usually be pending in the deceased’s state (or country) of residence and that is why the Florida probate will be ancillary (or secondary) to the primary probate case. If there are no current probate proceedings pending in another state or country, the estate can proceed as a summary administration or formal administration.
Florida Statute §734.102(1) provides that “if a nonresident of this state dies leaving assets in this state, (…) a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have ancillary letters issued if qualified to act in Florida. Otherwise, the foreign personal representative of the decedent’s estate shall be entitled to have letters issued, if qualified to act in Florida.”
If the decedent has not appointed a person to execute his or her last will upon death, a Florida court will appoint a personal representative within the State for the role.
Under Florida law, if the personal representative is not qualified under Florida law—namely by not being either a blood relative or Florida resident—and the last will designates an alternate or successor who is qualified, the qualified person may be entitled to serve as the estate’s personal representative; otherwise, either the court or a majority of persons with an interest in the estate selects a qualified personal representative.
The situation becomes even more complex when a nonresident dies intestate in Florida, i.e., without a valid will; in this instance, the personal representative will be appointed by the probate court per the procedure provided in Chapter 733, Florida Statutes.
What Types of Assets Are Subject to Ancillary Administration?
As provided by Florida law, “ancillary administration shall be commenced as provided by the Florida Probate Rules.” Hence, Florida law determines the types of assets that are subject to ancillary probate.
Usually, the most common type of asset involved in ancillary probate is real property, ranging from residential homes to commercial property or vacant land titled solely in the decedent’s name. Other assets that may come under probate include motor vehicles, bank accounts, boats, and mobile homes.
Did Your Loved One Leave Assets in the State of Florida? – Consult with Farshchian Law, P.A. Today
Ancillary probate administration is a complex legal matter that requires an expert approach. You have enough on your plate handling probate proceedings in your loved one’s home state and having to familiarize yourself with a different jurisdiction and set of probate rules.
Instead, partner with the experienced Florida probate and real estate attorneys at Farshchian Law, P.A., who have handled probate cases of all levels of complexity—including for nonresidents and foreign nationals. We will represent your interests to help distribute your loved one’s Florida assets to the rightful heirs. Call us today at (305) 901-5628 or (239) 935-8599, or email us at Probate@JFRealEstateLaw.com to schedule a free consultation.