Probate is the court process to settle a decedent's estate. Probate is needed when a property owner dies with assets in his or her own, individual name. When a Florida resident dies, the family/heirs would need to probate any property in the county of the decedent's residence. If, however, a non-resident of Florida dies owning real property (i.e., land) in Florida, then an ancillary probate will be necessary. This means hiring a Florida attorney to go to court on the estate's behalf in order to sell or re-title the real property. This also means that an executor who has been appointed in another state cannot act in Florida without a separate Florida probate procedure.
The ancillary probate process is very similar to any other Florida probates. The ancillary probate may either be a formal administration or a summary administration, which are outlined as follows:
Summary Administration: This is a more simple probate process that is available only when: 1) the assets (land here) are worth less than $75,000; 2) all the heirs consent to any court procedure; 3) all of the decedent's bills are paid; and 4) all of the decedent's assets are known. The family/heirs would still need to see a Florida attorney for assistance but the process is not that complicated and is fairly quick (less than a month, under most circumstances).
Formal Probate Administration: This is the full probate process of appointing the personal representative, dealing with creditors, publishing in the newspaper, etc. This is done when assets exceed $75,000, the estate has debts, heirs do not agree, there are unknown assets, and more.
In order to start an ancillary administration, the Florida attorney will need the following:
- two original death certificates (one for the court, one for the real property)
- authenticated copies of the domiciliary proceedings, which generally shows:
- the foreign will, if any
- the petition for probate or affidavit that no petition was required
- the order admitting the will to probate and
- the letters of administration or their equivalent.
Who will act as the personal representative is important. In Florida, the personal representative (i.e., the "executor") must be either related to the decedent by blood or must be a resident of Florida. If the will does not nominate a personal representative who is able to serve, those entitled to a majority interest of the Florida property may have letters issued to a personal representative selected by them who is qualified to act in Florida. This is the same procedure if the decedent died intestate - a majority of the heirs can choose the personal representative.
Once the heirs determine the personal representative, or if the will nominates a personal representative who is able and willing to serve, the rest of the probate procedure is the same as any other probate. This means:
- The personal representative is typically bonded by the probate court
- The court, upon petition, issues letters of administration that allows the personal representative to act on the estate's behalf
- Any real property can be listed and sold once the letters of administration are issued
- The personal representative must publish for outstanding creditors that runs for 90 days
- An inventory is due 60 days after appointment by the personal representative
- Heirs are entitled to an accounting of all costs, creditors, fees, etc.
- The process generally takes about 6 months from start to finish
Our office does a good number of ancillary administrations and we are glad to help you with yours. We have a real estate attorney and title company to help sell the property as well.
If you want to learn more about probate in Florida, please feel free to download my book, Navigating the Florida Probate Process.
