There are basically three types of probate administration under Florida law – formal, summary and an ancillary administration. Ancillary probate typically becomes necessary when the deceased person owned real estate in Florida but was domiciled (i.e. maintained his primary residence) elsewhere. Formal and summary administrations are generally independent processes, however, ancillary administration is often needed in addition to a primary probate proceeding that is carried out in another jurisdiction. Additionally, most assets can be handled by the non-Florida personal representative. However, real estate and tangible personal property located in Florida are usually the subject of a Florida ancillary probate.
Short Forms of Ancillary Administration
There are two kinds of “short form” ancillary administration in Florida. One form, under Florida Statute 734.1025, is used when the Florida assets are less than $50,000.00, and the other form, under Florida Statute 734.104, allows for the admitting of a foreign will to record.
Ancillary Probate Under Florida Statute 734.1025
If the value of the decedent ‘s Florida property is less than $50,000, the domiciliary personal representative of a testate estate can have the Will admitted to probate here in Florida. Once the Will is admitted to probate, a notice to creditors is published. If no claims are filed, the court will enter an order that the estate can proceed as a summary procedure. If a claim is filed, the administration most likely will be converted to a formal ancillary administration.
Ancillary Probate Under Florida Statute 734.104
When a nonresident decedent dies testate, a foreign Will may be admitted to record in the county where the decedent owned Florida real property is located. This procedure can be used any time after two years from the decedent ‘s date of death or any time after the domiciliary personal representative has been discharged. This is the case as long as the Will was executed as required under Florida law and it has been admitted to probate in the decedent’s place of domicile.
Avoiding An Ancillary Probate
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.
Please note, ancillary probate may not be less expensive/complicated than a formal probate administration; the fees and filing requirements are essentially identical for both proceedings. Therefore, it is important to have your estate plan reviewed routinely, especially when you own assets in another jurisdiction.
Updated November 2015.
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