December 6, 2022
Ancillary probate administration matters are secondary to domiciliary probate. Ancillary probate comes into play when a non-Florida resident dies owning real estate or other tangible property in another state, but owned property also in Florida. Chapter 734 of the Florida Statutes is the ancillary probate section of Florida’s Probate Code. The ancillary probate process would encompass all properties owned by the non-resident, whether residential or commercial. Moreover, ancillary probates occur contemporaneously in 2 different states – or even in different countries, wherein the fiduciary’s (i.e., the personal representative in Florida) authority stems from the original or domiciliary probate being open and ongoing at the same time.
Ancillary probates can be complex, depending on a number of factors, such as creditors, heirs, and the assets involved. There are some mechanisms your trusted estate planning lawyer may consider and discuss with you in your estate planning to potentially avoid probate, including ancillary probate, and of course, depending on your needs.
One mechanism to consider is a “ladybird deed” which is only recognized in a small handful of states (including Florida, of course). In a ladybird deed, the owner of Florida real estate retains the property ownership rights while still alive, and upon their death, the property is transferred immediately to the beneficiaries without the need for probate. Moreover, with a ladybird deed, the owner can still sell, lease, or encumber the property by way of a mortgage while the owner is still alive, and without the need for obtaining beneficiary consent.
A trust may be another option for a nonresident to own real property in Florida, which would avoid the beneficiaries to go through the process of a Florida ancillary probate to inherit it.
Another option may be to transfer the title of the real property into a business entity such as a limited liability company or limited partnership. However, the business entity’s operating agreement and other business formation documents should also be carefully drafted so that the shares of the company or partnership also can avoid potential probate administration.
One simpler option to consider is the joint ownership of the real property with rights of survivorship so that the other party immediately inherits the same upon the death of the other. If married, under Florida law, the property would be owned as tenants by the entirety and that is an exclusive right to that joint ownership of the property by right of survivorship.
Because ancillary probate has the potential to be rather complex, it is an important consideration to discuss with your trusted probate lawyer in preparing your estate plan. Alternatively, if you are already serving as a personal representative (or executor) of a probate in a state or country other than Florida, and find that there is Florida property to be administered, you should reach out to trusted probate counsel to assist on an ancillary administration.