Ancillary probate involves real estate and other personal property that a decedent leaves behind in a state other than where they lived at the time of their death. The probate process can be complex and time-consuming, even when all of the property is in one state.
If you are handling ancillary probate administration in Florida, you will need an experienced probate attorney. To learn more about the ancillary probate in Florida, contact Loshak Leach, LLP.
Understanding Ancillary Probate in Florida
Perhaps an individual lives in Massachusetts but owns a condo in Florida. In that case, the primary probate process will take place in Massachusetts. However, the Massachusetts probate courts will not have authority over the condo in Florida.
In this case, the decedent's estate administrator will need to initiate a second probate process. Other types of property may also be part of the ancillary probate, including boats or cars with Florida titles.
The Ancillary Probate Process
Florida law governs ancillary probate under Florida Statute 734.102. This process applies when a non-resident of the state dies and leaves behind:
A personal representative for the property located in Florida will need an ancillary letter regarding the estate. In many cases, the estate planning documents will not list a representative for the Florida property. When this happens, an out-of-state individual named as a representative will have to administer the Florida probate. The representative will have to comply with and qualify under Florida law for this process.
If there are no terms regarding an estate representative in the decedent's estate plan, the court will name a personal representative pursuant to Chapter 733 of the Florida Probate Code. This scenario would occur if the decedent never drafted a will.
Formal and Summary Administration
There are two main probate administration processes. A Formal Administration usually applies if the decedent has been dead for two years or less and when the value of the probate estate exceeds $75,000. The steps involved will include the court appointing a representative, notification to creditors, and publication of the probate in the newspaper.
The other probate process is Summary Administration. This proceeding is less involved and apply in cases where the value of the estate is under $75,000. The beneficiaries of the estate will need to agree to the summary probate. If those beneficiaries do not agree, the estate will go through formal administration. Also, if the decedent owed debts, or if the administrator cannot identify all of the assets in Florida, the probate process will need to be a more involved formal administration.
Summary administration requires that the representative share an authenticated copy of the probate administration from the decedent's home state. That documentation should include any wills, trusts, beneficiaries, and other information regarding the property located in Florida.
In cases where a creditor notifies the estate regarding a claim, the estate will go through a traditional ancillary probate process to resolve those debts. Frequently, no creditors will appear, and the administrator will be able to distribute the property to the named beneficiaries.
Creditors have only two years to file claims against a deceased individual's estate under the applicable statute of limitations. After the two-year period, a larger estate, such as those worth more than $75,000, can go through a summary administration process. Because summary administration is faster and simpler than formal administration, it is also less expensive. When possible, you should opt for summary administration rather than formal administration because it is an excellent way to save time and resources.
Can You Avoid Ancillary Probate?
Ancillary probate can increase the costs of probate administration significantly. Not only will the process increase court-related costs, attorney fees, and other expenses, but it will also draw out the probate and require additional time and energy to complete. There are ways that you can prevent the need for ancillary probate.
Creating a detailed estate plan can avoid ancillary probate through the use of a trust. If you wish to create a living trust, you can title your out-of-state property under the name of the trust. These assets will go straight to beneficiaries rather than through the probate process. The trust can hold any property, in your state or out of state, and all of it will bypass probate, therefore, saving your beneficiaries time, stress, and money.
Drafting a trust and other estate planning documents will help your loved ones manage any estate property and save assets at the time of your death.
Speak to an Experienced Ancillary Probate Administration Lawyer
Ancillary probate is a complicated process. An attorney can help you navigate the probate administration process in Florida. Contact the experienced ancillary probate lawyers at Loshak Leach LLP today to discuss your case by calling (954) 334-1122.