How Does Ancillary Probate Administration of Florida Property Work? – Lulich & Attorneys

How Does Ancillary Probate Administration of Florida Property Work? – Lulich & Attorneys

Many non-Florida residents have homes and other properties in Florida. Florida attracts many people from cold climates who love to live in Florida for the warmth in the winter months. If a New Yorker or someone from Iowa buys a home, a condo, or other property in Florida then many issues arise when that out-of-state owner dies.

  • Who owns the property after the owner dies?
  • Who has the right to sell the property?
  • What happens to the personal property in the home?
  • If the decedent is due money from Florida creditors, how does the personal representative obtain that money?
  • What are the rights of mortgage companies and other creditors?
  • What happens if there are any liens on the property?

Similar questions can arise if the out-of-state resident had cars, boats, bank accounts, or any property registered in Florida.

Usually, the non-Florida resident will have prepared a will in the state where he/she lives. An executor will then qualify according to the laws of New York, Iowa, or wherever the decedent resided. If there wasn’t a will, states generally allow a relative or authorized person to be chosen as the personal representative of the decedent’s assets – but only regarding assets in New York, Iowa, or wherever the personal representative resides. The personal representative appointed (by will or application) in the state where the nonresident lived is called – a foreign personal representative

Out-of-state personal representatives cannot take possession, manage, or distribute Florida property – without additional authority from Florida courts.

Appointment of a foreign personal representative in ancillary probate cases

The process of managing Florida assets when a non-Florida resident dies is through ancillary administration. The laws on Florida ancillary proceedings are at Florida Statutes - 734.102.

One way to avoid ancillary proceedings is to show that the decedent had changed his/her residence to Florida. Another way is if the Florida property was jointly owned with right of survivorship, then the survivor could make a direct claim to the property without the need for ancillary probate

The first step in Florida ancillary probate cases is the appointment of a Florida personal representative. The Florida 2018 statutes – 734.101 (Probate Code: Foreign Personal Representatives; Ancillary Administration) allows appointments or personal representatives in the following ways:

  • The foreign personal representative was “specifically designated in the decedent’s will to administer the Florida property.”  Then that foreign personal representative receives ancillary letters - if they are qualified to act in Florida.
  • The decedent’s will appoints a personal representative and the state of residence appoints that person. Then that person receives ancillary letters - if Florida approves their qualifications
  • The foreign personal representative is not acceptable to act in Florida but the will appoints a successor or alternative personal representative (PR). Then the alternate can receive ancillary letters – if they are qualified to act according to Florida law.
  • If there's no qualified personal representative who can act as PR, there's another option. Then “those entitled to a majority interest of the Florida property may have letters issued to a personal representative selected by them who is qualified to act in Florida.”

If nobody still qualifies, then an experienced Florida ancillary probate lawyer can explain who else might qualify to be appointed a domiciliary PR.

Florida qualifications to act as personal representative

All possible appointments to obtain ancillary letters require that the petitioner qualify to act under Florida law. Thus, it’s important to understand those qualifications. Not every state in the United States has the same qualifications. In Florida, the person seeking a PR appointment must:

  • Be sui juris – of legal age and not subject to any legal disability
  • Be a resident of Florida

Florida has its own order of preferences for appointing a personal representative if there's none in the decedent’s will

How Does Ancillary Administration Work in Florida?

Once the correct personal representative is appointed, Florida law designates the proper way to the probate of Florida assets. The best course of action is for the personal representative who has ancillary administration authority to speak with a Florida probate lawyer. The PR may need to post a bond and give notice to creditors. There's a sale of the assets. The PR opens an estate checking account for the proceeds. Good ancillary probate lawyers can help determine the correct value. They represent the PR in the sale and settlement of real property and the sale of personal assets.

Sale of testate property worth $50,000 or less

Florida law, 734.1025, provides an easier and quicker way to sell and distribute assets worth $50,000 or less. The PR can file with the circuit court where the property is a transcript of foreign proceedings showing the will and the beneficiaries. After the creditors receive notice, then:

  • If no creditors file claims, the PR can distribute the property
  • If creditors file claims, then there needs to be a resolution of the claims.

Additional ancillary probate issues

Generally, it is a good idea to do the in-residence probate and the Florida ancillary probate at the same time. This helps to make the paperwork and administration easier. It makes work for the foreign and domiciliary PR easier. It also expedites the collection, sale, and administration of all assets.