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Ancillary Probate Administration

The purpose of ancillary probate administration is to gather assets located in Florida belonging to a non-resident of Florida that has passed away and then to lawfully transfer those assets to the administrator or executor located in the decedent’s home state (i.e. where he/she was domiciled at the time of death). Ancillary administration is carried out in much the same fashion as a “normal” Florida probate administration. Its procedures are outlined in section 734.102, Florida Statutes.

What are the Requirements for Ancillary Probate Administration?

People usually seek to avoid an ancillary probate proceeding, whether in Florida or elsewhere. An ancillary probate proceeding in Florida may be necessary where the estate meets specific requirements. An ancillary probate proceeding is generally required in Florida if the decedent

  1. Was not a Florida resident at the time of death &
  2. Died owning property in Florida

Property that may be located in Florida at the time a loved one passes away may include:

  • Real property such as houses, condominium and co-operative units.
  • Commercial real estate
  • Motor vehicles
  • Water crafts such as boats
Who May Serve as a Personal Representative?

Under Florida law, a personal representative is required to be named to represent an ancillary probate estate. Florida’s Probate Code provides that the personal representative should be: (a) the person or entity named as such in the foreign administration or, if not qualified to act in Florida; (b) then the alternative qualified person nominated in the will or, otherwise; (c) those entitled to a majority interest of the Florida property may select a person who is qualified in Florida. The personal representative has to give a bond, as do typically all personal representatives. All proceedings for appointment and administration of the estate will be as similar to those in original administrations as possible. Unless creditors' claims are otherwise barred by statute, the ancillary personal representative must cause a notice to creditors to be served and published according to statutory requirements. Claims not filed in accordance with statute will be barred as provided. After the payment of all expenses of administration and claims against the estate, the court may order the remaining property held by the ancillary personal representative transferred to the foreign personal representative or distributed to the beneficiaries.

Commencement of Ancillary Administration

Ancillary administration must be undertaken as provided by the Florida Probate Rules. Pursuant to the Florida Probate Rules, the petition for ancillary letters shall 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. Prior to ancillary letters being issued to anyone, 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.

Conclusion

Florida courts have the authority to resolve the disposition of assets belonging to a non-Florida resident that are located in Florida through a process called ancillary administration. Ancillary probate proceedings are typically filed secondary to the estate proceeding in the decedent's home state of his/her residence. If more than two years have elapsed since the date that the decedent died or if the decedent's estate located in Florida is relatively tiny, there may be alternative procedures available to administer the decedent's Florida estate. It is the universal policy of the law to preserve local assets first for the payment of costs and expenses of ancillary administration, next for the satisfaction of local creditors, and thereafter for application to other just claims against the estate.

Did a Loved One Die Owning Property in Florida?

If a loved one died owning property in Florida, you may need to open an ancillary estate. Contact attorney Andrew J. Pascale today to evaluate your probate options.

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