In Florida, it is not uncommon for persons to own real property or other assets in the state while not being residents of the state. Each Winter, residents of northern states travel to their Florida properties to spend the cold months in Florida’s warm weather. Many of these persons own homes in both their home state and in Florida. So what happens if these residents of other states die and still own Florida real property? Often the result is that two probate administration proceedings will need to be opened. The probate of the resident state is commonly referred to as the “domiciliary probate” and the probate in Florida would then be the “ancillary probate.”
The domiciliary probate is filed or opened in the home state of the deceased person. If there is a Will, that state is where the Will is admitted to probate. That state is also where the Executor or Personal Representative is initially appointed. The domiciliary probate will administer all of the assets of the decedent located in the home state.
However, in order to administer and transfer assets, and particularly real property, located in Florida, an ancillary probate will need to be opened. Through the ancillary probate, a Personal Representative will be appointed by the Florida probate court. That Personal Representative can then sell or otherwise transfer the Florida property.
Understanding how these two types of probate work also demonstrates the importance of getting good estate planning advice. Often persons who own real property in different states can avoid both the domiciliary and the ancillary probate by placing their real property into a Living Trust. This can save not only time and money but double the time and money becasue two probates will be avoided.
Opening an ancillary probate requires that the person initiating the process retain an attorney. Since probate in general, and ancillary probate in particular, involves some challenging issues, it is usually best to retain an attorney with expereince in handling probate administration.
