Probate is the legal process of settling a person’s estate after they have passed away. In general, a decedent’s estate will need to go through probate whenever he or she died owning property in their sole name, without beneficiary designations. If the decedent owned real property, aka real estate, in states other than their home state when they passed away, this property will have to undergo an additional probate procedure called ancillary probate.
Ancillary probate is a supplementary probate proceeding in another state that is necessary to complete the “domiciliary” probate proceeding in the decedent’s home state and to effectively sell or transfer the property located in the non-domiciliary state. For instance, if the decedent resided in New York when he or she passed away, the domiciliary probate proceeding would take place in a New York probate or surrogate court. An ancillary probate proceeding would then have to take place in a Florida court to clear title in transferring the decedent’s vacation home or timeshare, located in Florida.
In Florida, an ancillary probate administration is generally required whenever a person who was not a resident of the state:
As with domiciliary probate in Florida, an ancillary probate can be in the form of a formal administration or a summary administration.
Formal administration – is required when the Florida property is valued over $75,000. In order to conduct a formal administration an attorney must be employed to be designated as the attorney of record for the estate, and an ancillary personal representative will be appointed. An ancillary formal probate will involve all of the same steps as a domiciliary administration, including a publication of notice to creditors and a 90 day creditor period. Once the creditor period expires and any creditor claims are satisfied, the personal representative can begin the process of closing the estate.
Summary administration – is a shortened form of probate administration that can be utilized when the deceased person’s FL property is valued at less than $75,000, or when the decedent passed away more than two years ago. A summary administration can have a number of drawbacks, so the proceeding is only recommended in particular situations.
For an ancillary probate administration in Florida, you will need to enlist the help of a Florida probate attorney. But before your attorney can initiate an ancillary probate administration, he or she will need the following items:
During a formal probate, an ancillary personal representative will be appointed to carry out the administration. If a personal representative, or executor, was appointed in the domiciliary proceeding, that person will have preference in appointment for the ancillary proceeding, as long as the person named is qualified to act as a personal representative in the state of Florida. If the person cannot serve, then the majority of heirs shall nominate someone to serve in the role. In general, a personal representative can be any individual who resides in Florida, or can be a non-resident if they are a close relative of the decedent such as a spouse, child, sibling or parent of the decedent who is qualified.
To be qualified to act as personal representative of an estate in Florida one must: