You may have heard of the Florida ancillary probate process and wondered what it means and how it works. In essence, ancillary probate is a special type of probate that is required when a non-resident of Florida dies owning assets in the state.
Below, we will explain how ancillary probate works in Florida and share some tips on how to avoid it.
What is Ancillary Probate?
Ancillary probate is a secondary probate proceeding that is conducted in Florida to transfer the ownership of Florida assets that belong to a non-resident decedent. Ancillary probate is different from the primary probate proceeding, which is usually held in the state or country where the decedent lived.
The primary probate proceeding is also typically called the domiciliary probate proceeding.
Ancillary probate is only required for assets that are located in Florida. Typically, the most common type of asset involved in ancillary probate in Florida is real property titled solely in the decedent’s name. Other assets that may have to go through Florida probate include bank accounts, boats, cars, and mobile homes.
However, ancillary probate is not required for assets that are owned jointly with rights of survivorship, or assets that have a designated beneficiary, such as a trust, a retirement account, or a payable-on-death account.
How Does Ancillary Probate Work?
The Florida ancillary probate process varies depending on several factors, such as whether the decedent had a will, whether there was a probate proceeding in the home state, and the value of the Florida property.
Generally, there are two types of ancillary probate in Florida: formal administration and summary administration.
Formal Administration is the most common and comprehensive type of ancillary probate in Florida. It is similar to a regular probate proceeding, except that it only deals with the Florida property of the non-resident decedent.
Formal administration requires the following steps:
- Filing a petition for ancillary administration with the probate court in the county where the Florida property is located.
- Publishing a notice to creditors in a local newspaper and sending a notice to known creditors of the decedent.
- Preparing an inventory of the Florida property and filing it with the court.
- Paying all taxes and debts of the estate.
- Distributing the remaining property to the beneficiaries according to the will or the laws of intestate succession, if there is no will.
Formal administration can take several months or even years to complete, depending on the complexity of the estate and the issues that may arise during the process.
Summary Administration, on the other hand, is a simplified and expedited type of ancillary probate. However, it is available only if the value of the Florida property does not exceed $75,000 or if the decedent has been dead for more than two years.
Summary administration requires the following steps:
- Filing a petition for summary administration with the probate court in the county where the Florida property is located.
- Obtaining an order of summary administration from the court, which will direct the distribution of the property to the beneficiaries according to the will or the laws of intestate succession, if there is no will.
Summary administration can be completed in a matter of weeks or months, and it can be considerably less expensive than formal administration.
How to Avoid Ancillary Probate
Ancillary probate can be costly, time-consuming, and complicated. Therefore, it is advisable to avoid it if possible.
If you own assets in Florida, there are strategies you can use to avoid ancillary probate in Florida. These are:
- Selling or transferring the Florida assets before death. You can sell or transfer the Florida assets to another person, or to a trust, before death. This way, the assets will not be part of the probate estate and will not require ancillary probate.
- Owning the Florida assets jointly with rights of survivorship. You can own the Florida assets jointly with another person, such as a spouse, a child, or a friend, with rights of survivorship. This means that when one owner dies, the surviving owner automatically inherits the assets without probate.
- Designating a beneficiary for the Florida assets. You can designate a beneficiary for the Florida assets using estate planning tools such as a trust or a payable-on-death account. This means that when you die, the assets will pass directly to the designated beneficiary without probate.
We Can Help You Navigate the Florida Ancillary Probate Process
At Jurado & Associates, P.A., we specialize in Florida probate and estate planning. We know the Florida probate laws and procedures inside and out, and we can guide you through the ancillary probate process step by step.