An ancillary probate administration refers to a probate proceeding in another state where the decedent (person who passed away) owned property within that state but was not a resident at the time of death. The procedures for an ancillary administration are similar to that of a formal probate administration for decedents that were Florida residents at the time of death. When a resident of another state dies owning real property in Florida, ancillary administration or ancillary probate is usually necessary to effectuate a valid sale or transfer of such property.
Why is Ancillary Probate Administration Needed?
It is important to understand that when person who is not a resident of Florida passes away, neither the probate court in the decedent’s state of residence, nor the decedent’s out-of-state personal representative or executor, have jurisdiction over the decedent’s Florida property. This means that the decedent’s executor or personal representative does not have the power under Florida law to sell or distribute such property.
Ancillary administration issues often arise when the heirs of a non-resident decedent are attempting sell real estate (such as a vacation home) located within the state of Florida. In many cases, the heirs do not recognize the need for ancillary probate administration until after the real estate contract has been signed which can substantially delay or preclude the closing.
For example, at the time of his death, Brad was a resident of New Jersey. Brad’s estate was probated in New Jersey. However, the New Jersey court could not dispose of Brad’s vacation home in Cape Coral, Florida because it did not have jurisdiction over the vacation home. In order to enforce Brad’s estate’s rights relating to the Cape Coral property, formal ancillary administration or another type of simpler administration may be required under Florida law.
Procedures Available to Effectuate a Valid Sale or Transfer of Florida Property
The procedures necessary to effectuate a valid sale or transfer of the decedent’s Florida property will depend upon the specific circumstances of the case. Available options under Florida law may include summary administration in Florida, short form ancillary administration in Florida or ancillary probate administration in Florida.
Summary Administration in Florida
In certain situations, the estate may qualify for an abbreviated proceeding known as Summary Administration. Section 735.201 of the Florida Statutes provides that Summary Administration is generally available if the cumulative value of Florida property is below $75,000 or if the proceedings are commenced two years after the decedent’s death. The process does not require the appointment of a personal representative and in most cases, can be completed in a relatively short period of time.
In most situations, the value of a vacation or winter home located in Naples or Bonita Springs is going to exceed the $75,000 limit for summary administration. This means that summary administration will not be an option unless the decedent has been deceased for two or more years. Additionally, sometimes the decedent’s last will and testament will direct formal probate administration. If this is the case, even if the two years have passed and/or the total value of the Florida property does not exceed $75,000, summary administration will not be possible.
Short Form Ancillary Administration in Florida
Although generally more limited than summary administration, there may be situations where short form ancillary administration can be used to effectuate the sale or transfer of the decedent’s Florida property. In order for an estate to qualify for this procedure, many rules and requirements must be satisfied. These requirements include, but are not limited to, the following:
- the decedent cannot have been a resident of Florida at the time of his or her death;
- the decedent must have had a valid will;
- the decedent’s death must not have occurred more than two years ago; and
- the gross value of the decedent’s Florida property at the time of death cannot exceed $50,000.
While most vacation homes will far exceed the $50,000 cap, there are situations where short form ancillary administration may be appropriate, such as a vacant lot which has a gross value under the $50,000 limit.
Ancillary Probate Administration in Florida
In most situations, when an estate involves a vacation home or other high value Florida real estate, formal ancillary probate administration will be necessary. In an ancillary probate proceeding, a personal representative must be named to administer the non-resident’s Florida estate.
Florida Statute 734.102 provides that where the decedent’s will specifically designates a personal representative to administer the Florida property, the decedent’s wishes will be carried out and the representative will be issued ancillary letters (a document giving the personal representative the authority to act on behalf of the estate) if qualified to act in Florida. If there is no such designation in the will, the decedent’s foreign personal representative will have ancillary letters issued if she/he is qualified to act in Florida.
Florida Statute 734.102 further provides that in situations where the foreign personal representative is not qualified to act in Florida and the will designates an alternate or successor representative who is qualified to act in Florida, that representative shall be entitled to have ancillary letters issued. Should the will fail to name a successor or alternate personal representative, the persons who are “entitled to a majority interest of the Florida property” will be eligible to have letters issued to a personal representative they have chosen who is qualified to act in Florida. In those situations where the decedent passes away without a will (intestate) and the foreign personal representative is not qualified to act in Florida, Florida statutes prescribe the order of preference for the appointment of the personal representative.
Ancillary probate administration can be a complicated and highly involved process. If you have a loved one who resided in another state at the time of his or her death but owned real estate in Bonita Springs, Naples or another region of Florida, you should consult with an experienced Florida probate lawyer who can carefully take you through the probate process. Your attorney will evaluate your situation and outline all options that may be available to you. Keep in mind that unless the estate goes through the proper administration proceeding under Florida law, you will not hold a good and marketable title to the property. A qualified attorney can help you take the proper steps to cure any potential defects in title so that you can move forward with the sale or transfer of the property in a timely fashion.