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How Ancillary Probate Affects Your Florida Property


Many people use Florida as a second home–perhaps maintaining a vacation property in the Fort Myers area–while continuing to reside full-time in another state. So how do you dispose of your vacation home under Florida law? Is your out-of-state will valid here? Do you need to create a separate will? Are there special rules your estate will need to follow?

Will Florida Recognize My Out-of-State Executor?

In the United States, probate is generally a state matter. This means that when you die, a court in your home state must appoint a personal representative or executor to take charge of your assets and distribute them, either according to the terms of your will or the state’s intestacy laws. But a personal representative can only exercise control over assets located within the state. For out-of-state assets, there needs to be a second proceeding called ancillary probate.

Florida law expressly provides for ancillary probate. A personal representative named in an out-of-state will is only entitled to open an ancillary estate here in Florida if he or she meets the state’s qualifications. Under Section 733.304 of the Florida Statutes, a nonresident cannot serve as personal representative unless they are a child (natural or legally adopted), a blood relative, a spouse, or the spouse of someone else who is qualified to serve. Florida also prohibits minors (anyone under the age of 18), individuals judges incapacitated by a court, and convicted felons to serve as executor.

If no qualified spouse or relative is available, it will be necessary to appoint a resident of Florida to serve as personal representative for purposes of the ancillary probate.

Avoiding Ancillary Probate With a Living Trust

Ancillary probate can add significant time and expense to the administration of an estate, particularly if there is a need for different executors in different states or any Florida property needs to be sold during the probate process. One way to avoid the need for ancillary probate altogether is to place all of your assets, regardless of physical location, into a living trust. Trusts can own property in multiple states without regard to local probate laws. In fact, the trust instrument itself can designate what state’s law to apply to any legal disputes arising from the trust.

With a trust you technically no longer own the property–your trustee does. With a living trust, you typically serve as your own trustee during your lifetime. When you pass away a successor trustee simply steps into your shoes and continues to administer the assets as directed by the trust instrument. None of the assets go through probate in the first place, so ancillary probate is unnecessary.

If you think a trust may be right for your situation, you should speak with a qualified Fort Myers estate planning and probate attorney. Trusts are legally binding agreements, and you should always consult with an attorney before signing any document that can affect the property rights of you and your family. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free confidential consultation today.

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