Posted By Larry Tolchinsky on October 21, 2010

There are three types of probate administration under Florida law – formal, ancillary and summary administration, of which formal administration is most common – and one very rare non-court-supervised process. Ancillary probate typically becomes necessary when the deceased person owned real estate in FL but was domiciled (i.e. maintained his primary residence) elsewhere. You should note that while formal and summary administration are generally independent processes, ancillary administration is often needed in addition to a primary probate proceeding that is carried out in another jurisdiction. This does not mean, however, that ancillary probate is any less expensive/ complicated than formal administration; the fees and filing requirements are essentially identical for both proceedings.

There are circumstances in which ancillary probate can be avoided, but, generally, such techniques must be employed before the deceased person passes away and probate is opened:

• First, if the property is properly recorded as being co-owned by two or more people with “rights of survivorship”, it will pass to the remaining co-owners as a matter of law upon the decedent’s death.
• Second, the decedent may re-title the property in the name of his “revocable living trust” during his lifetime, so that the property will not be subject to probate upon his death. A revocable living trust is an arrangement by which a “settlor” transfers ownership of his property to a “trust” during his lifetime. If the settlor names himself as “trustee”, he retains complete control of the trust and the property in it as long as he is alive and legally competent, which means he can use, modify, sell, etc. the property as he sees fit. Upon the settlor’s death, the right to manage the trust is transferred to his named “successor trustee”, who transfers the property to the settlor’s intended beneficiaries outside of the costly and time-consuming probate process.

Tags: Ancillary Probate