Ancillary probate occurs in a situation when a decedent dies leaving real estate and or other personal property in a state other than their state of residence.
The primary, main, or domiciliary probate will take place in the state in which the decedent resided at the time of his or her death. However, that state will not have jurisdiction (authority) over the property out of state. Just for example, a North Carolina resident dies while owning a condominium and other property located in Florida would call for an ancillary probate in Florida.
In such an instance, a second probate – the ancillary probate – would be initiated. Chapter 734 of the Florida Statutes governs ancillary probate, and applies when a non-Florida resident dies leaving behind real property or other assets (such as boats, cars, etc.), liens on any property in Florida, or even debts that a Florida resident owes to them.
Ancillary letters of administration would be issued by the Florida probate court. Often times, the personal representative (executor) in the domiciliary probate is appointed as the personal representative in the Florida ancillary probate administration. A will may not list who is nominated to serve in Florida as the personal representative. The personal representative will have to qualify under Florida law in order to serve. And, if there is no will (i.e., intestate administration), the Florida probate court would be left to appoint a personal representative pursuant to Chapter 733 of the Florida Statutes. Exemplified copies of domiciliary probate documents will need to be provided to the Florida probate court as well.
The applicable statute for guidance on ancillary administration is Fla. Stat. 734.102, which provides:
- If a nonresident of this state dies leaving assets in this state, credits due from residents in this state, or liens on property in this state, a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have ancillary letters issued, if qualified to act in Florida. Otherwise, the foreign personal representative of the decedent’s estate shall be entitled to have letters issued, if qualified to act in Florida. If the foreign personal representative is not qualified to act in Florida and the will names an alternate or successor who is qualified to act in Florida, the alternate or successor shall be entitled to have letters issued. Otherwise, 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. If the decedent dies intestate and the foreign personal representative is not qualified to act in Florida, the order of preference for appointment of a personal representative as prescribed in this code shall apply. If ancillary letters are applied for by other than the domiciliary personal representative, prior notice shall be given to any domiciliary personal representative.
- Ancillary administration shall be commenced as provided by the Florida Probate Rules.
- If the will and any codicils are executed as required by the code, they shall be admitted to probate.
- The ancillary personal representative shall give bond as do personal representatives generally. All proceedings for appointment and administration of the estate shall be as similar to those in original administrations as possible.
- Unless creditors’ claims are otherwise barred by s. 733.710, the ancillary personal representative shall cause a notice to creditors to be served and published according to the requirements of chapter 733. Claims not filed in accordance with chapter 733 shall be barred as provided in s. 733.702.
- After the payment of all expenses of administration and claims against the estate, the court may order the remaining property held by the ancillary personal representative transferred to the foreign personal representative or distributed to the beneficiaries.
- Ancillary personal representatives shall have the same rights, powers, and authority as other personal representatives in Florida to manage and settle estates; to sell, lease, or mortgage local property; and to raise funds for the payment of debts, claims, and devises in the domiciliary jurisdiction. No property shall be sold, leased, or mortgaged to pay a debt or claim that is barred by any statute of limitation or of nonclaim of this state.
An ancillary administration can be either done as a formal probate administration (like a regular Florida probate process, and likely similar to that conducted in the domiciliary estate), or a summary administration. These nuances on whether formal or summary administration would be appropriate can be reviewed and recommended by your trusted probate lawyer.
Ancillary probate may be unnecessary, depending on whether the decedent has prepared an estate plan, possibly through the use of a trust that provides for the ancillary property to be distributed directly to beneficiaries. This should also be explored in preparing your own estate planning documents with your trusted probate lawyer.
