Owning property in Florida while living in another state is extremely common. It can also create an unexpected legal issue when the owner dies.
A family may already have opened probate in New York, New Jersey, Pennsylvania, Georgia, California, or another state—only to learn that the personal representative may need a separate Florida proceeding before a Florida home, condominium, vacant lot, or other asset can be transferred or sold.
That Florida proceeding is commonly known as ancillary administration or ancillary probate.
At Gold Legacy Law, PLLC, I assist families, beneficiaries, personal representatives, and out-of-state attorneys with Florida ancillary probate matters. Below are answers to 50 frequently asked questions about ancillary probate in Florida.
Florida Ancillary Probate Basics
1. What is ancillary probate in Florida?
Ancillary probate is a Florida probate proceeding involving certain Florida property owned by a person who was domiciled in another state or country when they died. It may be necessary in addition to the primary probate proceeding occurring where the deceased person lived.
2. When is ancillary probate required in Florida?
Ancillary administration may be necessary when a non-Florida resident dies owning Florida property that cannot otherwise be legally transferred to the appropriate beneficiaries or heirs.
3. Why isn't probate in the deceased person's home state enough?
A probate court in another state generally cannot by itself accomplish everything necessary to administer title to Florida real estate. Florida law governs important aspects of Florida property, which can make a Florida proceeding necessary.
4. What is the difference between domiciliary probate and ancillary probate?
Domiciliary probate generally occurs in the jurisdiction where the deceased person was domiciled. Ancillary probate is an additional proceeding in another jurisdiction where the deceased person owned property.
For example, a New York resident who owned a Florida condominium could potentially have a domiciliary proceeding in New York and an ancillary proceeding in Florida.
5. Is ancillary probate a completely separate probate case?
It is a Florida court proceeding, but it is related to the administration occurring in the decedent's home jurisdiction. Documents and orders from the domiciliary estate can be important to the Florida proceeding.
6. Where is ancillary probate filed in Florida?
The proper Florida county generally depends on the Florida property or assets involved and the applicable venue rules. For real estate, the property's location is particularly important.
Property That May Require Ancillary Probate
7. What types of Florida property can require ancillary probate?
Florida real estate is one of the most common reasons. This can include a vacation home, condominium, rental property, vacant land, commercial property, or other Florida real estate owned by a nonresident.
8. Does a Florida vacation home have to go through ancillary probate?
It may, particularly when the deceased person owned the property individually and there is no effective non-probate mechanism for transferring ownership.
9. Does a Florida condo require ancillary probate?
Potentially. A condominium is Florida real estate, so individually owned condominium property can create the need for Florida ancillary administration when a nonresident owner dies.
10. Does vacant land in Florida require probate?
It can. Families sometimes overlook vacant land because no one is living there and there may be no mortgage. But ownership still has to be legally transferred following the owner's death.
11. Does a Florida timeshare require ancillary probate?
Possibly. The answer depends on the nature of the timeshare interest, how ownership is structured, and whether there is an effective method for transferring the interest outside probate.
12. Can a Florida bank account require ancillary administration?
Potentially, depending on ownership and whether the account has an effective beneficiary or survivorship designation. Not every Florida financial account automatically requires a Florida probate proceeding simply because the financial institution operates in Florida.
13. Does personal property located in Florida require ancillary probate?
It can, depending on the nature of the property, ownership, and circumstances. Ancillary administration is not limited exclusively to real estate.
Avoiding Florida Ancillary Probate
14. Can a revocable living trust avoid ancillary probate in Florida?
Often, yes. If Florida property was properly transferred into a revocable living trust before the owner's death, trust administration may allow the property to pass without a separate probate proceeding.
The key word is properly. Signing a trust without transferring the Florida property into it does not automatically avoid probate.
15. Does having a will avoid Florida ancillary probate?
No. A will does not, by itself, avoid probate. A valid will can determine how probate property should pass, but the will may still need to be administered through the appropriate probate proceeding.
16. Can joint ownership avoid ancillary probate?
Sometimes. Florida property owned with legally effective survivorship rights may pass to the surviving owner without traditional probate administration. The actual deed should be reviewed rather than assuming survivorship exists.
17. Can a Lady Bird deed avoid ancillary probate?
An appropriately prepared enhanced life estate deed—commonly called a Lady Bird deed—can potentially allow Florida real property to pass to designated remainder beneficiaries without traditional probate when the owner dies.
Whether this strategy is appropriate should be evaluated before the deed is prepared.
18. Can an LLC prevent ancillary probate?
Potentially, depending on the structure. If an LLC owns the Florida real estate, the deceased person owns an interest in the entity rather than owning the real property individually. However, the membership interest itself must still be properly addressed in the owner's estate plan.
19. Can I avoid ancillary probate after the owner has already died?
Estate planning techniques generally need to be implemented during the owner's lifetime. After death, the focus changes to determining what type of Florida proceeding, if any, is necessary to transfer the existing property.
Starting Florida Ancillary Probate
20. How do you start ancillary probate in Florida?
The appropriate petition and supporting documents are filed with a Florida probate court. The precise filing depends on the domiciliary proceeding, the Florida assets, the will, and the type of Florida administration being requested.
21. Do we have to open probate in the home state first?
The answer depends on the circumstances. Frequently, there is already a domiciliary probate proceeding, and documents from that proceeding are used in connection with Florida ancillary administration. However, not every estate follows the same procedural path.
22. What documents are needed for Florida ancillary probate?
Commonly relevant documents can include the death certificate, will, information concerning the foreign probate proceeding, authenticated or certified court records, information about the Florida property, and information identifying beneficiaries, heirs, and fiduciaries.
23. Does the original will have to be filed in Florida?
Not necessarily in every case. If the original will is already being administered by a court in another jurisdiction, Florida procedure may allow appropriate authenticated copies or other probate records to be used depending on the circumstances.
24. Will Florida recognize a will signed in another state?
Florida law provides for recognition of certain wills executed outside Florida when they satisfy applicable requirements. However, special issues can arise with forms of wills that Florida law does not recognize.
25. What if the deceased person did not have a will?
Ancillary probate can still occur. When there is no valid will controlling the property, Florida intestacy and other applicable laws may determine who receives the Florida property.
Personal Representatives in Ancillary Probate
26. Who handles a Florida ancillary probate?
Depending on the type of administration, a personal representative may be appointed to administer the Florida estate.
27. Can the personal representative from another state serve in Florida?
Possibly, but not automatically. Florida has qualification requirements for personal representatives, including restrictions concerning certain nonresidents.
28. Can a nonresident serve as a Florida personal representative?
Certain nonresidents can qualify. Florida law permits specified relatives and others meeting statutory requirements to serve even though they do not live in Florida.
29. What if the out-of-state executor does not qualify in Florida?
Another qualified person may need to be appointed for the Florida administration. This does not necessarily change who serves in the domiciliary estate.
30. Is an executor the same as a personal representative?
The terms describe similar fiduciary roles, but Florida generally uses the term personal representative. Other states frequently use terms such as executor or administrator.
Selling Florida Property During Ancillary Probate
31. Can a Florida house be sold during ancillary probate?
Often, yes. The appropriate procedure depends on the estate, the will, title to the property, the authority of the personal representative, and whether additional court authority is required.
32. Can the family list the Florida property before probate is finished?
Possibly, but having a real estate agent list a property and having legal authority to convey title at closing are different issues. The probate strategy should be addressed early if the family intends to sell.
33. Can we sign a contract to sell the property before ancillary probate is opened?
This can create complications because the person signing must have authority to bind the appropriate owner or estate. Families should determine who has legal authority before entering into a transaction.
34. Who signs the deed when estate property is sold?
That depends on how the property passes and the type of administration. A personal representative, beneficiaries, heirs, or another authorized party may ultimately need to execute documents.
35. What happens to the mortgage during ancillary probate?
The mortgage generally does not disappear when the owner dies. The loan remains secured by the property, and payments, payoff, assumption, refinancing, or sale may need to be addressed.
36. Who pays HOA fees, taxes, insurance, and other Florida property expenses?
These obligations can continue while ownership is being resolved. Who ultimately bears them depends on the property, estate, beneficiaries, and applicable law. Allowing taxes, insurance, condominium assessments, or HOA obligations to go unattended can create additional problems.
Florida Homestead and Nonresident Owners
37. Is a vacation home owned by a nonresident Florida homestead?
Not necessarily. Florida homestead status involves more than simply owning residential property in Florida. A true vacation property belonging to someone domiciled elsewhere may present a different analysis from the Florida primary residence of a Florida domiciliary.
38. What if the deceased person claimed Florida was their primary residence?
Then the first question may be whether the estate actually requires ancillary administration at all.
If the decedent was domiciled in Florida at death, Florida may instead be the proper jurisdiction for the primary probate administration. Domicile disputes can become important when someone maintained homes in multiple states.
39. Can someone have homes in two states but only one domicile?
Generally, yes. A person can own multiple residences, but domicile involves the person's permanent legal home and intent. Determining domicile can require examining much more than where someone happened to own property.
Costs and Timing
40. How much does ancillary probate cost in Florida?
Costs vary based on the type and value of property, procedure used, creditor issues, complexity of the estate, whether property must be sold, and whether disputes arise. Potential expenses include court costs, attorney's fees, recording costs, appraisals, and other administration expenses.
41. How long does ancillary probate take in Florida?
There is no universal timeline. A straightforward matter involving one Florida property may be considerably simpler than an estate involving multiple properties, creditors, title issues, missing heirs, litigation, or disputes.
42. Is ancillary probate faster than regular Florida probate?
Not necessarily. Ancillary administration describes the relationship between the Florida proceeding and the decedent's non-Florida domicile. It does not automatically mean the Florida proceeding will be short or simple.
43. Can ancillary probate qualify for summary administration?
Potentially, depending on whether the estate satisfies Florida's requirements for summary administration and whether that procedure is appropriate for the particular assets and circumstances.
Out-of-State Families and Attorneys
44. Do I have to travel to Florida for ancillary probate?
Often, much of the probate process can be handled without beneficiaries or fiduciaries repeatedly traveling to Florida. Whether an appearance or other participation is necessary depends on the case.
This is particularly helpful for families who live hundreds or thousands of miles from the Florida property.
45. Can my attorney in another state handle the Florida probate?
An out-of-state attorney may handle the primary estate in the decedent's home state, but Florida probate generally requires involvement of counsel authorized to practice in Florida when Florida legal representation is required.
46. Can Gold Legacy Law work with the family's attorney in another state?
Yes. Coordinating with the attorney handling the domiciliary estate can make ancillary administration more efficient. The two proceedings may require sharing wills, court orders, fiduciary information, and other estate documents.
At Gold Legacy Law, PLLC, we welcome referrals and coordination with out-of-state counsel who need Florida assistance for their clients.
47. What if the heirs all live outside Florida?
That is common in ancillary probate. The fact that beneficiaries live elsewhere does not prevent Florida property from being administered and ultimately transferred or sold.
Special Ancillary Probate Problems
48. What if Florida property was discovered after the main probate closed?
The appropriate procedure depends on what happened in the domiciliary estate and how the Florida property is titled. Further proceedings may be required in the home jurisdiction, Florida, or both.
The property should not simply be ignored because the original estate has already closed.
49. What if several family members inherit the Florida property?
Multiple beneficiaries may ultimately become co-owners if the property is distributed rather than sold. Before distribution, families should consider whether they actually want to own Florida property together and how expenses, use, repairs, rentals, and a future sale will be handled.
50. Do I need a Florida ancillary probate attorney?
If a person who lived outside Florida died owning Florida property, obtaining advice from a Florida probate attorney early can help determine whether ancillary administration is actually required, which procedure is appropriate, and what must happen before the property can be transferred or sold.
The answer is not always "open another full probate." The first step should be determining what the deceased person owned, how it was titled, what occurred in the domiciliary estate, and what the family wants to accomplish with the Florida property.
Need Help With Florida Property Owned by Someone Who Lived in Another State?
Discovering that you need another probate proceeding after already dealing with an estate in another state can be frustrating.
Fortunately, Florida ancillary probate does not necessarily mean starting the entire estate administration process over again.
At Gold Legacy Law, PLLC, I help out-of-state personal representatives, executors, beneficiaries, heirs, families, and referring attorneys navigate Florida ancillary probate proceedings involving Florida homes, condominiums, investment properties, vacant land, and other assets.
Our firm handles Florida probate matters throughout the state and serves clients in Miami Lakes, Miami-Dade County, Broward County, Palm Beach County, and beyond. For clients who live outside Florida, we work to make the Florida portion of the administration as straightforward as the circumstances permit.
We also assist when ancillary probate intersects with probate litigation, deed preparation, trust administration, estate planning, and disputes involving Florida real property.
Contact Gold Legacy Law, PLLC by email to [email protected] or call 305-556-5209 to schedule a consultation regarding Florida ancillary probate or to discuss a Florida probate referral.