Ancillary Probate Proceedings: What is It and When Needed?

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July 3, 2024

When it comes to probate proceedings, the question is not where a person died, but rather where they lived that determines which court has jurisdiction for probate. Any state-issued death certificate will list the decedent's residential address as it appears on their driver's license or other official state identification and this is the address that will determine in which court probate documents are filed. Even if someone dies out-of-state, or in another country, if their official government ID lists them as a Florida residents, probate of their estate will take place in the court of their home County. In the past, we have handled cases from decedents who have passed away on vacation in the South Pacific or while receiving treatment for cancer at a research hospital in Ohio and their estates are still probated in Florida because they were full-time Florida Residents.

But what about cases for people who owned property in Florida but didn't live in the state? In these cases, it is necessary to open probate proceedings in Florida as an Ancillary Administration case. This is the subclass of probate administration that deals with assets of non-Florida residents. This type of probate is reserved for residents of other states who own assets that are physically located in Florida, such as real estate or safe-deposit boxes. Since these types of property cannot be physically transported to the home jurisdiction of the decedent, the way that personal items can be shipped and bank balances can be transferred, the state laws of the geographical location of these assets retain their jurisdiction over how these assets are conveyed from the estate of a deceased person to their beneficiaries and/or heirs when it comes to deeds and judicial orders of transfer.

Ancillary Probate cases begin much the same as Formal and Summary Administration cases do. The first step is to secure certified copies of any probate documents from the home jurisdiction of the decedent in particular, any will that has been filed, a copy of the death certificate, and copies of the Letters of Administration. These will serve to establish the identity of the decedent, their named beneficiaries, if any, and the authority of any Executor or Personal Representative who has been duly appointed to act on the estate's behalf. These documents will allow a Florida attorney to obtain Ancillary Letters of Administration which extends the powers of the Personal Representative to the state of Florida and grants them the same authority to act on the estate's behalf when it comes to signing any legal documents, including deeds or transfers of title, such as in the case of vehicles registered with Florida plates. Any out-of-state assets will need to be listed in inventory and accounting documents submitted in the home state of the estate, but an inventory being filed in an Ancillary Case in Florida only needs to list Florida assets.

Ancillary Probate is also necessary when dealing with any unclaimed property in the state of Florida. In Florida, when any type of property goes unclaimed by the owning party for a certain period of time, the agency or organization in possession of the property will entrust it with the state registry. This is most common with certain types of financial assets, like life insurance policies or retirement accounts from previous employers. Once the property is deposited with the state, ancillary probate proceedings must be initiated and a Personal Representative must be appointed in order for the state to release the property to the rightful owner, being the estate of the decedent. Sometimes people have a life insurance policy that they purchased years prior to their death that lists people as beneficiaries who have since died or were registered to an address in Florida where the decedent no longer lived, and these policies are unknown to the heirs of the decedent at the time of their death. After a certain time has passed, the insurance company will pass the policy payout off to the Unclaimed Property Division of Florida's Department of Financial Services where it will remain until the rightful heirs of the decedent come to claim it. In this situation, Ancillary Probate will be necessary to claim the property from the state.

Ancillary Proceedings can be initiated at any time that it is appropriate to do so and many times don't coincide with standard probate proceedings. We recently had a case where the decedent passed away nearly 10 years ago and probate was completed shortly thereafter, only for the decedent's children to discover that their loved one had purchased a plot of vacant land in Florida at auction years prior to their death and never mentioned it to any of them. We were able to open ancillary proceedings using copies of probate documents from their home state and transfer the property to them even 10 years after probate proceedings were closed.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.