Do You Have To Probate Out-Of-State Property Owned by a Florida Resident?
If a Florida resident dies with a vacation home, rental property, or other property elsewhere, loved ones are often left wondering whether they have to probate such property and, if so, where the probate process happens. Generally, Florida courts do not have the authority to probate property located out of state. A second proceeding, known as an ancillary proceeding, may be required in the state where the property is located. This article explains the process so you and your family can navigate the estate distribution with greater clarity and avoid unnecessary complications and delays.
How Does Out-Of-State Property Affect Probate in Florida?
For a Florida resident, the primary probate proceeding or domiciliary probate generally takes place in Florida. That’s the starting point; the state where they were legally living when they died. Florida law establishes the venue for probate based on the decedent’s domicile.
For real estate located out of state, Florida probate courts may not have control over this. Real property is generally subject to the laws and jurisdiction of the state where it’s located. For example, if the decedent was a Florida resident but owned a rental home in New York, the Florida probate case may address the property generally, but New York may require its own proceeding to transfer that property to the appropriate beneficiary. This additional proceeding is called ancillary probate.
It’s worth noting that having a valid will does not automatically eliminate the need for ancillary probate. While the will determines who should receive the property, the state where the property is located may still require its own legal process before title can be legally transferred.
When Might Ancillary Probate Not Be Necessary?
Not every out-of-state property requires a second separate probate proceeding. The way a property is owned can make a significant difference in the process.
For example, you may avoid ancillary probate when:
- The property was jointly owned with rights of survivorship, as this allows it to pass automatically to the surviving owner.
- The property was owned by a properly established trust, rather than by the decedent individually
- The state where the property is located provides a simplified procedure that may apply to the particular estate or asset.
The specific rules ultimately depend on the state where the property is located, so you cannot assume that an exception available in Florida may be available in another state.
Why Multi-State Probate Can Become Complicated
A second probate proceeding can add another layer of administration to an already difficult process.
During the process, you may face:
- Additional court and attorney fees
- Separate filing and notice requirements
- Different deadlines and creditor procedures
- Property taxes, insurance, and maintenance expenses while the estate is pending
- Delays in transferring or selling property
- The need to coordinate attorneys and personal representatives in multiple states
This is where an experienced Florida probate attorney comes in. The attorney can help identify estate assets, determine whether an ancillary proceeding may be necessary, prepare the Florida probate documents, and coordinate with counsel in the other state when appropriate.
Contact Us for Legal Help
If you are dealing with an estate that includes property outside Florida, contact our Miami probate and estate litigation lawyer today at Valero Law by calling 305-607-7011 to understand the probate requirements and your options. We serve clients in Davie, Coconut Grove, Broward County, and Miami-Dade County.
