Mom with child in kitchen after learning how to avoid ancillary probate in Florida.

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Ancillary Probate in Florida - What You Need to Know

Have questions about how ancillary probate works in the state of Florida? Learn about probate laws in Florida, including how to avoid probate in Florida.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

Ancillary probate is a proceeding that takes place in addition to probate. Additional probate proceedings are sometimes required when a decedent owns property in more than one state. A probate court only has jurisdiction over property located within state borders, so any property located elsewhere may require ancillary probate. For instance, an individual who owns their summer vacation home in Florida but lives in a different state should be thinking about ancillary probate. This guide will talk about when ancillary probate may be required, as well as how to avoid probate in Florida.

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When is ancillary probate required in Florida?

In Florida, ancillary probate is required when a nonresident passes away as the sole owner of property located in Florida. Examples include real estate such as a vacation home, rental property, commercial building, or other types of tangible property such as a boat or livestock. An estate that goes through ancillary (additional) probate in other states will incur additional costs through the estate settlement process.

Ancillary probate can rack up these expenses quickly in Florida for a couple of reasons. First, Florida Probate Code requires every personal representative of an estate to be represented by an attorney with a license to practice in Florida. The only exception is if the personal representative is also the sole interested party of the estate. Even if the personal representative were to decide not to hire an attorney in the estate’s domiciliary state, they would likely still have to hire an attorney for ancillary probate in Florida. Second, attorney fees vary based on the value of the estate, as defined by Section 733.6171 of the Florida Probate Code. An estate valued between $100,000 and $999,999 can be charged up to 3% in attorney fees. For example, a Florida vacation home worth $900,000 may result in probate fees of up to $27,000. This can certainly decrease the value of the estate that can be distributed to beneficiaries.

How much does ancillary probate cost in Florida?

The cost of an ancillary probate in Florida will depend on a number of factors, such as attorney fees, court fees, the value of the estate, and the length of probate. Florida probate is known to be lengthy and expensive, thanks to the filing of legal documents, court hearings, and attorney representation. Families who  file for ancillary probate in the Sunshine State often wait at least six months before the estate can be settled, and before they can receive their inheritance. Explained in the section prior, the Florida probate code protects attorney interest by establishing fees in advance. Fees can be calculated based on the value of the state. 

How to avoid ancillary probate in Florida

Based on the information revealed thus far, you may be wondering how you might be able to avoid ancillary probate in Florida. This may apply to you if you are an out of state resident, or a foreigner, who owns property in Florida.

Luckily, there are several options available:

  • Lady Bird Deed / Enhanced Life Estate Deed

  • Joint Ownership with Rights of Survivorship

  • Revocable Living Trust

  • Ownership in a Business Entity

Lady Bird Deed / Enhanced Life Estate Deed

In a handful of our other guides regarding ancillary probate, we’ve referred to the option of a Transfer on Death (TOD) deed, which allows an individual to transfer real estate ownership automatically upon their death and thus avoiding probate. However, Florida has not passed a law allowing TOD deeds. 

Instead, Florida recognizes a special type of deed called an Enhanced Life Estate Deed, or Lady Bird Deed. With this type of deed, the property owner (the “life tenant”) has a right to do whatever they wish with the property during their lifetime. When they pass away, the property will pass outside of probate to the beneficiaries (the “remaindermen”) named in the deed. This means that the beneficiaries may not necessarily inherit the property if the owner sells it during their lifetime. However, if the tenant still owns the property at the time of passing, then the beneficiaries can inherit it automatically and outside of probate. 

This type of deed can be a viable option for any individual who owns real estate in Florida and wishes to avoid probate, whether it be regular probate or ancillary probate.

Joint ownership with rights of survivorship

Ancillary probate is only required when an individual passes away, and they were the sole owner to the property subject to probate. It is not required if the property was owned between two or more owners with rights of survivorship. This means that when one of the owners passes away, then the remaining owners will automatically absorb the decedent’s share of the title. Thus, the property does not have to pass through probate. Married couples often own their homes together in this way. 

Revocable Living Trust

Anyone who wishes to avoid probate of any kind should most certainly include a Revocable Living Trust in their estate plan. A Trust is a fiduciary agreement that allows an individual to transfer their property and assets into the name of the Trust, and thus removing them from their personal estate. With a Living Trust, they can still control and use these assets, although the Trust technically owns them. When the individual passes away, then the property is distributed out of the Trust rather than out of their estate. 

A non-resident of Florida who owns property in Florida may choose to transfer that property into a Trust and avoid ancillary probate.

Ownership in a business entity

Similar to a Living Trust, property owned by a company or a corporation is not considered as a part of an individual’s personal estate. Thus, an individual who owns commercial or rental property in Florida to their business entity, such as a limited liability company (LLC.) While this may help the owner avoid ancillary probate in Florida, it may not necessarily avoid primary probate in the owner’s home state. They should always consult the probate code of the states in which they own property.

Learn more about ancillary probate

Ancillary probate is a secondary probate process that takes place when an individual owns property in multiple states. Primary or domiciliary probate takes place in the state in which they live (their domiciliary state), and ancillary probate takes place in the state(s) in which they do not live but own property. Vacation properties or rental income properties located in another state are the most common examples of when ancillary probate is required.

Ancillary probate only adds to the cost and administrative burden of the probate process in general. In Florida specifically, ancillary probate can be especially expensive because the personal representative of the estate is usually required to hire a Florida attorney, and because the Florida Probate Code predetermines attorney fees that are correlated with the estate value. This provides strong motivation for an individual to set up their estate such that property does not have to pass through probate. This guide provided several strategies on how to avoid ancillary probate in Florida. 

Want to learn more about ancillary probate, how it works, and how to avoid it? Be sure to check out our dedicated guide, here!

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