There are many people who own property in the state of Florida but do not reside in Florida. If someone passes away (the decedent) who resides in another state, but owns property in Florida, the Florida property needs to be distributed according to the decedent’s wishes. However, the main probate case will likely need to be opened in the state where the decedent resided at the time of his or her death. So how does the decedent’s property in Florida get transferred to his or her loved ones? The answer is ancillary probate administration.
In Florida, ancillary probate administration is defined under Chapter 734, Florida Statutes. Under section 734.102(1), Florida Statutes, “If a nonresident of this state dies leaving assets in this state, credits due from residents in this state, or liens on property in this state, a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have ancillary letters issued, if qualified to act in Florida.” Furthermore, section 734.102(1), Florida Statute goes on to state that if there is no special personal representative named in the decedent’s will for Florida property, the foreign personal representative can act for the ancillary administration, if the foreign personal representative is qualified to act under Florida law. If the decedent passes away without a valid will, then the personal representative for the Florida ancillary probate administration will be named according the order of preference set out in Chapter 733, Florida Statutes.
It is important to remember that ancillary administration applies only to assets of a decedent’s probate estate, not to creditors. Thus, if a decedent owes money to a creditor in Florida or another state, that creditor can still file claims in both the main probate case according to the particular state’s law, or in the ancillary administration. However, if a decedent does not own property in Florida, but owes money to creditors in Florida, there is no need for an ancillary administration in Florida.
Additionally, it is good to remember what types of assets can qualify for ancillary administration. Section 734.102, Florida Statutes sets out several different types of assets that will require ancillary administration. First, there are the common types of assets such as a house, condo, other real property, or a car. Then there are the other, less common, types of assets that may require ancillary administration. Some examples of these assets include:
- The decedent loaned money to someone in Florida and that person is making payments on the loan the decedent at the time of his death. The loan itself is an asset of the probate estate and ancillary administration may be required to transfer the loan according to the decedent’s will or the intestacy statutes in the state of residency.
- The decedent provided a person with a loan secured by a mortgage in Florida. See the loan example above.
- The decedent owns a boat or a mobile home that is titled by the state of Florida.
Ancillary administration works similarly to a regular Florida probate administration. The procedure, and it similarities to a regular Florida probate administration are also set out in section 734.102, Florida Statutes. The personal representative may be required to give bond, under the requirements of the Florida Probate Code. The Florida Probate Rules apply in ancillary probate administrations. The personal representative for an ancillary administration is required to provide notice to creditors of the decedent, just as in a regular Florida probate proceeding. At the conclusion of the ancillary administration, the remaining assets are transferred to the personal representative in the main probate administration to be distributed according to the will or the intestacy laws of the state.
If the property owned by the decedent in Florida is valued at less than $50,000 and the decedent died with a will, the personal representative in the foreign probate administration may be able to conduct a “summary” ancillary administration as set out in section 734.1025, Florida Statutes. In order to conduct the “summary” ancillary administration, the foreign personal representative needs to file an authenticated or exemplified copy of the foreign probate administration showing the will and beneficiaries with the clerk of court where the Florida property is located. The foreign personal representative will then need to notice the creditors of the decedent in accordance with the Florida Probate Rules. If any creditors file a statement of claim in the case, the case must carry on as a traditional ancillary administration with a personal representative appointed. If no statements of claim are filed within the appropriate time period, the assets can be distributed to the foreign probate administration to be distributed.
If you have a loved one who had passed away in another state, but has assets located in Florida, you should talk to your probate attorney about hiring a Florida probate attorney. It is important to do ancillary probate at the time of the main probate administration, because if the property in Florida was not probated at the same time, the original probate may need to be reopened in order to transfer the Florida property. If your loved one owned property in Florida, but resided in another state, contact our firm today to schedule a free consultation. Our attorneys will work with the out of state probate attorneys to make sure the ancillary administration is completed efficiently, so that the property can be transferred according to your loved one’s wishes.
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