Many of our Clients have loved ones who have passed away in Florida but they themselves are residents of a foreign state. In this type of scenario, it is important to consider how to effectively probate an estate in Florida if you reside somewhere else.
A. If your Primary Proceedings will be in Florida:
If the deceased was a resident of Florida then primary probate proceedings should occur within the State of Florida:
Fla. Stat. 733.101 provides:
733.101 Venue of probate proceedings.—
(1) The venue for probate of wills and granting letters shall be:
(a) In the county in this state where the decedent was domiciled.
(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.
(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.
(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.
(3) Whenever a proceeding is filed laying venue in an improper county, the court may transfer the action in the same manner as provided in the Florida Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected by the improper venue.
So typically we will initiate the probate proceedings in the County in Florida the decedent was domiciled. If you are a non-resident and looking to become the appointed Personal Representative (aka the Executor) then you can be a nonresident subject to he restrictions of Fla. Stat. 733.304 which provide:
733.304 Nonresidents.—A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
(4) The spouse of a person otherwise qualified under this section.
Probating an estate as a non-resident can be accomplished without difficulty in Florida so long as you take the appropriate measures to plan for and preserve property. This can be done through employing third parties and professionals in the appropriate county so that you can manage the affairs of the estate with the aid of others.
B. If you Have Probated or are Currently Probating an Estate an Another State – Florida Ancillary Administration
If you are probating an estate somewhere else, for example if the decedent was domiciled in Alaska but owned property in Florida, you will need to bring a separate proceeding here in Florida in order to transfer legal title to real property. This process of setting up a new administration in Florida is call an Ancillary Administration. Fla. Stat. 734.102 sets forth the basis for an Ancillary Administration and provides that a separate Florida probate proceeding shall be commenced pursuant to the Florida Probate Rules. Fla. Stat. 734.102(2). Here are two of the most relevant Florida statutes below:
734.101 Foreign personal representative.—
(1) Personal representatives who produce authenticated copies of probated wills or letters of administration duly obtained in any state or territory of the United States may maintain actions in the courts of this state.
(2) Personal representatives appointed in any state or country may be sued in this state concerning property in this state and may defend actions or proceedings brought in this state.
(3) Debtors who have not received a written demand for payment from a personal representative or curator appointed in this state within 90 days after appointment of a personal representative in any other state or country, and whose property in Florida is subject to a mortgage or other lien securing the debt held by the foreign personal representative, may pay the foreign personal representative after the expiration of 90 days from the date of appointment of the foreign personal representative. Thereafter, a satisfaction of the mortgage or lien executed by the foreign personal representative, with an authenticated copy of the letters or other evidence of authority attached, may be recorded in the public records. The satisfaction shall be an effective discharge of the mortgage or lien, irrespective of whether the debtor making payment had received a written demand before paying the debt.
(4) Except as provided in s. 655.936, all persons indebted to the estate of a decedent, or having possession of personal property belonging to the estate, who have received no written demand from a personal representative or curator appointed in this state for payment of the debt or the delivery of the property are authorized to pay the debt or to deliver the personal property to the foreign personal representative after the expiration of 90 days from the date of appointment of the foreign personal representative.
734.102 Ancillary administration.—
(1) 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.
(2) Ancillary administration shall be commenced as provided by the Florida Probate Rules.
(3) If the will and any codicils are executed as required by the code, they shall be admitted to probate.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
This process is similar to a typical Florida Probate Administration and has provisions for admitting a certified copy of the foreign state’s will (if any) to Probate and to deal with creditor claims. If you have probated an Estate in a State other than Florida or if you are currently doing so and have property located in Florida, give us a call to learn more about ancillary administration.