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Will your out-of-state assets be subject to ancillary probate?

On Behalf of | Jul 5, 2023 | Probate |

A lot of people who have made Florida their full-time residence as they near or enter retirement still have property in other states. If you own assets in another state, those will need to be addressed in your estate plan. They may also need to be dealt with via a process called “ancillary probate” after you’re gone.

This can include anything from a condo that you’ve kept as a rental property, a boat that’s still docked further up the Atlantic coast, a share of a business or even a bank account in another state. Unless you deal with them while you’re alive, they’ll need to be dealt with by your executor.

Ancillary probate typically isn’t as complicated and lengthy as “domiciliary” probate. Most probate courts will accept an estate plan that’s approved by a court in the decedent’s state of residency. However, if you’re taking steps to allow your estate to avoid probate here in Florida, you likely want to avoid ancillary probate for your out-of-state assets.

You can avoid ancillary probate

If you sell or gift your out-of-state property while you’re alive, you won’t have to include these assets in your estate plan. If you give away valuable assets, however, it’s important to be aware of the possible tax implications. 

If you want to keep these assets, either to use or because they’re earning income for you, you can avoid probate by placing them in a living trust. Assets in a living trust typically avoid probate – unlike those listed in a will – and go directly to their beneficiaries.

Another option is to add your designated beneficiary to the title of the property or on an account. If you are comfortable with them having access to the asset now, you can add them as a co-owner. You may choose to give them a right of survivorship, which means they get the asset only when you die. The options will vary somewhat depending on what state the asset is in.

As with all estate planning decisions, handling out-of-state assets isn’t a do-it-yourself proposition. It’s crucial to have experienced legal guidance to help ensure that you’re in compliance with the law and doing what’s best for you and your family.


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