What “Snowbirds” Need to Know About Florida Estate Planning

Florida has always been a welcome refuge for people looking to escape the harsh winters of colder climates. Indeed, it is common practice for many of these “snowbirds” to buy and maintain a second residence in Florida. If you are one of these people, you need to be aware of how owning real property in Florida affects your estate planning, even if most of your assets are located in another state.

Second Homes and Ancillary Probate

Probate–the administration of a person’s property after death–is principally a matter of state law in the United States. This means that for most people, their state of residence at the time of death is where their estate is administered.

But this also means that an individual state’s probate court only has jurisdiction over property located (or domiciled) within its borders. For most intangible property, such as bank accounts or stocks, the state of domicile is normally considered the same as that of the deceased person’s residence. Real property, of course, is always located within a particular state, which may differ from the state of residence.

Let’s say your primary residence is in New York but you spend your winters at a summer home that you own in Fort Myers. After you die, your estate is opened in New York under its probate laws. But the New York courts have no legal authority to handle real estate physically located in Florida, which in this case includes your second home.

So what does the executor of your New York estate do? He or she would have to open an ancillary (or secondary) probate here in Florida. In most cases, the Florida courts will recognize an out-of-state executor appointed under a will accepted for probate by another state. But it may be necessary to secure local counsel here in Florida to assist with the necessary paperwork.

Note that you do not necessarily need to have a second will just to deal with your Florida property. For example, if your will leaves your entire estate to your spouse, that would include all of your property regardless of its location. But ancillary probate would still be necessary to carry out your wishes with respect to any property physically located inside of Florida.

Speak with a Florida Estate Planning Attorney About Creating a Trust

One way many snowbirds avoid the need for ancillary probate is to place all of their property into a trust. Trust property is not subject to probate in any state. Instead, when the original trustee dies, a successor trustee assumes title to all trust property. This can greatly simplify post-death transfer and minimize–if not outright eliminate–the need to open a formal probate estate.

But trusts are complex legal documents. And when properties located in multiple states are involved, it is important to consult with a qualified Fort Myers estate planning attorney before making any final decisions. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation with a member of our estate planning team today.