What is ancillary probate in Florida

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January 5, 2024

INTRODUCTION: Ancillary administration in Florida is a specific probate process applied to nonresidents who own assets within the state at the time of their death. This process ensures that such assets, whether real estate, personal property, or financial interests, are appropriately managed and distributed in accordance with Florida law, alongside the primary probate proceedings in the decedent’s state of domicile.

WHEN NEEDED AND WHEN NOT

A. In General: Ancillary administration in Florida is not always necessary. It is typically required when a nonresident’s estate includes certain types of assets located within the state. Understanding when this process is needed is essential for executors and beneficiaries dealing with out-of-state estates.

B. Nonresident Decedent With Florida Debtor Or Florida Tangible Personal Property: If a nonresident decedent has debts owed by a Florida resident or owns tangible personal property in the state, ancillary administration is often required. This ensures that any Florida-based assets or liabilities are properly addressed.

F.S. 734.101(3) provides in part:

Debtors who have not received a written demand for payment from a personal representative or curator appointed in this state within 90 days after the appointment of a personal representative in any other state or country, and whose property in Florida is subject to a mortgage or other lien securing the debt held by the foreign personal representative, may pay the foreign personal representative after the expiration of 90 days from the date of appointment of the foreign personal representative.

C. Nonresident Decedent With Realty In Florida

• In General, For nonresidents owning real property in Florida, ancillary administration becomes necessary to deal with these assets following their death.
• Shorter Forms Of Ancillary Administration Florida law provides for shorter forms of ancillary administration in certain cases, making the process more streamlined and efficient.
• Notice To Creditors Similar to primary probate, ancillary administration in Florida requires the issuance of a notice to creditors, allowing them to file claims against the estate's assets within the state.

D. Nonresident Decedent With Personalty In Florida: When a nonresident decedent owns personal property in Florida, ancillary administration is typically necessary to manage and distribute these assets.

E. Resident Decedent Whose Will Is Probated In Another State: In cases where a Florida resident's will is probated in another state, ancillary administration in Florida may be required for any in-state assets.

PROCEDURE FOR ISSUANCE OF ANCILLARY LETTERS

A. Who May Serve: The individual eligible to serve as the ancillary personal representative in Florida is typically the one appointed in the will or a qualified relative.

B. Venue: The appropriate venue for ancillary administration is usually the Florida County where the decedent’s property is located.

C. Petition For Ancillary Administration: Filing a petition for ancillary administration is a critical step in initiating the process for managing a nonresident’s Florida-based assets.

POWERS AND DUTIES OF ANCILLARY PERSONAL REPRESENTATIVE

A. Management Of Decedent's Property: The ancillary personal representative is responsible for overseeing the decedent's property in Florida, ensuring proper management and distribution.

B. Tax Filing Requirements: This role includes complying with tax filing requirements pertinent to the estate’s Florida assets, both at the state and federal levels.

For a nonresident, Florida law imposes an estate tax on the transfer of real property located in Florida, on tangible personal property with a Florida situs, on intangible personal property with a Florida business situs, and on securities and obligations of corporations organized under Florida law. F.S. 198.03. The amount of estate tax due to Florida is equal to that proportion of the state death tax credit under federal law as the value of taxable Florida property bears to the value of the decedent's entire gross estate

CONCLUSION OF PROCEEDINGS: The ancillary administration process concludes once all Florida assets are distributed and all related legal and tax obligations are fulfilled. The ancillary personal representative then seeks discharge from their duties, marking the end of their role.

ORIGINAL FLORIDA ADMINISTRATION OF NONRESIDENT'S ESTATE: In some instances, a nonresident's estate may undergo original administration in Florida, especially when the decedent has significant assets or interests in the state. This scenario typically involves a comprehensive probate process under Florida jurisdiction.

Additional Information on Ancillary Administration: Ancillary administration is grounded in the principle of state sovereignty, as no state court can determine ownership of out-of-state assets. It allows for the probating of wills in compliance with Florida law and recognizes domiciliary state’s probate orders, subject to certain conditions. This dual process ensures that all assets, irrespective of their location, are handled according to the decedent’s wishes or the law. It is important to note that Florida law governs the validity and effect of dispositions of a nonresident decedent's real property in the state. The process allows for a foreign personal representative to maintain actions in Florida courts and defend actions concerning state property, ensuring comprehensive estate management.

Conclusion: An ancillary administration in Florida plays a critical role in the management and distribution of assets owned by nonresident decedents within the state. It complements the primary administration process, ensuring that all assets, regardless of their geographic location, are handled appropriately. For executors and beneficiaries navigating this process, understanding the nuances of Florida’s probate laws and seeking professional legal guidance is crucial for the smooth and efficient administration of the estate.

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