Ancillary Probate Administration in Florida
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When someone who lives in another state or country dies and leaves assets in Florida, then Florida statutory law dictates how those assets are administered. The procedure to transfer the Florida assets is called “ancillary probate. “
Most often, an ancillary probate administration begins in the state of the decedent’s residency and the secondary probate proceeding is then commenced in the Florida county in which the decedent’s property is located. Once a personal representative or executor has been appointed by the Court in the decedent’s home state, he or she can petition the Florida Court for authority to act as an ancillary personal representative in Florida.
Even if a personal representative has been appointed in the decedent’s home state, neither that person nor the home state’s probate court has jurisdiction over the Florida property. For example, if a person who lives in New York owns a second home in Broward County, Florida, and passes away, the transfer of that property is subject to Florida probate laws, rules, and procedures.
What is the Objective of an Ancillary Administration and Who May Act as a Florida Personal Representative?
The object of a Florida ancillary probate administration is to collect assets of nonresident decedents found within Florida and to remit the proceeds to the domiciliary executor or personal representative. The “domiciliary estate” is the estate established by the decedent’s home state or country, while the “ancillary estate” is the estate created in Florida.
Under the Florida Probate Code, Florida Statute 734.102, if a nonresident of Florida dies leaving assets in Florida, then a personal representative named in the decedent’s will to administer Florida property will be entitled to have ancillary letters issued, as long as they are qualified to act in Florida. Otherwise, the foreign personal representative of the decedent’s estate will be entitled to have letters issued, if qualified to act in Florida.
If the decedent dies intestate and the foreign personal representative is not qualified to act in Florida, the order of preference for the appointment of a personal representative is set forth in the Probate Code.
Rights, powers, and authority of an ancillary personal representative
According to the Florida Probate Code “Ancillary personal representatives shall have the same rights, powers, and authority as other personal representatives in Florida to manage and settle estates; to sell, lease, or mortgage local property; and to raise funds for the payment of debts, claims, and devises in the domiciliary jurisdiction. No property shall be sold, leased, or mortgaged to pay a debt or claim that is barred by any statute of limitation or of nonclaim of this state.”
However, for example, if a Florida ancillary personal representative wishes to sell Florida real estate, then the personal representative will likely need an order from the Florida probate court to do so.
How to Commence and Complete an Ancillary Probate Administration in Florida?
According to Florida probate rule 5.470, a petition for ancillary letters must include an authenticated copy of so much of the domiciliary proceedings as will show (1) for a testate estate, the will, petition for probate, order admitting the will to probate, and authority of the personal representative; or (2) for an intestate estate, the petition for administration and authority of the personal representative to act. Before ancillary letters will be issued to any person, formal notice must be given to (1) all known persons qualified to act as ancillary personal representative and whose entitlement to preference of appointment is equal to or greater than petitioner’s and who have not waived notice or joined in the petition; and (2) all domiciliary personal representatives who have not waived notice or joined in the petition.
When an authenticated copy of a will is filed with the probate clerk, the court is required to determine whether the will complies with Florida law in order for it to be entitled to be probated. If it does comply, the court is required to admit the will to probate.
Basically, if a will is executed within the formalities of Florida law (the Florida Probate Code), then the will must be admitted to probate.
The ancillary personal representative will likely be required to post a bond, just like most personal representatives are generally required to do in Florida.
Unless creditors’ claims are barred under the Probate Code, the ancillary personal representative must publish a notice to creditors.
After the payment of all expenses of administration and claims against the ancillary estate, the court will likely order the remaining assets held by the ancillary personal representative transferred to the domiciliary personal representative or distributed to the beneficiaries.
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Larry Tolchinsky is an experienced Florida probate attorney with years of experience dealing with the Florida Probate Code, its ancillary administration statute, and its related case law. Please feel free to contact Larry Tolchinsky today for a free consultation.
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