What Is Ancillary Probate?

Ancillary probate is a necessary legal process when a person passes away in State A and owns real property in State B. This is because the real estate laws of the state where the property is situated will govern how that property is transferred after the owner's death. The estate may be required to navigate through probate proceedings in both states. The process in State A is designated as the primary or domiciliary probate, while the proceedings in State B are referred to as the ancillary probate.

Ancillary probate administration can be a complex procedure that involves the collaboration of two lawyers - one in State A and another in State B or a personal representative in State A may handle the domiciliary probate, then coordinate with a lawyer in State B for the ancillary probate, or the other way around.

In the context of Florida law, there are three types of ancillary probate: Summary Ancillary Administration, Formal Ancillary Administration, and International Ancillary Administration.

  1. Summary Ancillary Administration: This is a simplified process typically used when the decedent has been dead for over two years, or the property is valued at $75,000 or less. For instance, if a New Yorker who owned a condo in Miami worth $50,000 passes away, Summary Ancillary Administration could expedite the probate process in Florida.

  2. Formal Ancillary Administration: This is a more comprehensive process when the out-of-state decedent’s Florida property exceeds $75,000 in value, or the decedent has been deceased for less than two years. Imagine an individual from Georgia who owned a luxury property in Palm Beach valued at $1 million; their estate would likely go through Formal Ancillary Administration in Florida.

  3. International Ancillary Administration: This applies when a non-resident alien dies owning property in Florida. For example, if a British citizen owned a vacation home in Orlando, their estate would go through International Ancillary Administration upon death.

Various strategies can be used to prevent Florida's often complex and costly ancillary probate process, and retaining a qualified estate planning attorney is strongly recommended. As probate attorneys with expertise in real estate law, we have witnessed the complications and substantial financial pitfalls that can occur when people rely on non-professional legal websites or services.

Here's an overview of some strategies that estate planning attorneys commonly use:

  1. Creating a Revocable Living Trust: Real estate can be transferred into this trust while the owner is still alive. Upon death, the trust property passes directly to the named beneficiaries without going through probate.

  2. Establishing a Limited Liability Company (LLC): The property can be owned by an LLC, and ownership of the LLC (rather than the property itself) can be transferred upon death, potentially avoiding probate.

  3. Joint Ownership with Right of Survivorship or Tenancy by the Entirety: If the property is owned this way when one property owner dies, the property automatically transfers to the surviving owner(s) without going through probate.

  4. Enhanced Life Estate Deed, or Lady Bird Deed: This deed allows the property owner to retain control over the property during their lifetime but automatically transfers the property to named beneficiaries upon the owner's death, bypassing probate.

Probate avoidance Strategies depend on our unique situation and circumstances and should always be discussed with a knowledgeable estate planning attorney.

  • Published: Jul 12, 2023
  • Updated: Dec 26, 2023

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This FAQ is for informational purposes only and does not constitute legal advice. We make no representations or warranties about this FAQ's completeness, accuracy, reliability, or suitability. Each legal situation is unique. Always consult an attorney for personalized guidance.

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