The case of “In re Estate of Salathe” clearly states that Florida’s intestacy laws apply to the inheritance of property located within the state (In re Estate of Salathe, 703 So.2d 1167 (1997) . This is reiterated in the same case where it was held that despite the decedent not having a valid will in Florida, the property would still be distributed according to Florida’s intestacy laws because the property is situated in FlorAppointment of Personal Representativeida.
Importantly as to questions of heirship or marriage, a foreign country’s laws will be provided deference for that determination.
The principal of comity however means that Florida courts will also recognize decrees as to foreign states and judgment.
Procedurally, when someone dies out of state or out of country the primary proceeding where they resided is known as the domiciliary proceeding and the Florida proceeding where the additional property is located would be the ancillary proceeding. Some important rules to know:
Rule 5.470 – ANCILLARY ADMINISTRATION
- Petition. The contents of the petition for ancillary letters shall be as provided in rule 5.200. The petition shall be verified and shall include:
- for a testate estate, an authenticated copy of so much of the domiciliary proceedings as will show the will, petition for probate, order admitting the will to probate, and authority of the personal representative;
- for an intestate estate, an authenticated copy of so much of the domiciliary proceedings as will show the petition for administration, and authority of the personal representative to act; or
- if appointment of someone other than the domiciliary personal representative is requested, a statement of the facts constituting grounds on which appointment is sought.
- Notice. Before ancillary letters shall be issued to any person, formal notice shall be given to:
- all known persons qualified to act as ancillary personal representative and whose entitlement to preference of appointment is equal to or greater than petitioner’s and who have not waived notice or joined in the petition; and
- all domiciliary personal representatives who have not waived notice or joined in the petition.
- Probate of Will. On filing the authenticated copy of a will, the court shall determine whether the will complies with Florida law to entitle it to probate. If it does comply, the court shall admit the will to probate.
When to File Ancillary Probate in FloridaAncillary probate is necessary when your loved one owned real estate or other property in Florida but lived in another state or country at the time of death. This process ensures that the Florida property is transferred to beneficiaries, either according to the deceased’s will or by intestate succession if they died without a valid will. Generally, ancillary probate is not required to transfer bank accounts, retirement assets, or personal property, but real estate must be probated in the state where it is located. For example, if your parents or loved ones bought a condo for the winters in Florida, you would need to file ancillary probate proceedings to transfer the title.
Foreign Personal Representative Rights and Responsibilities
Maintaining Actions and Defending in Florida Foreign personal representatives who provide authenticated copies of probated wills or letters of administration from another U.S. state or territory can initiate legal actions in Florida courts. They can also be sued in Florida concerning property located in the state and defend actions brought in Florida (Fla. Stat. § 734.101(1)-(2)).
Payment of Debts Debtors in Florida who haven’t received a written demand for payment from a Florida-appointed personal representative within 90 days after a foreign personal representative’s appointment can pay the foreign representative. This payment is effective, and a satisfaction of mortgage or lien by the foreign representative can be recorded, effectively discharging the debt (Fla. Stat. § 734.101(3)).
Delivery of Personal Property Similarly, persons indebted to the estate or holding personal property of the estate can pay or deliver the property to the foreign personal representative after 90 days if no demand has been received from a Florida representative (Fla. Stat. § 734.101(4)).
Ancillary Administration Process Appointment of Personal Representative When a non-resident dies leaving property in Florida, a personal representative named in the will or, if none is named or they are unqualified, a foreign personal representative can apply for ancillary letters of administration. If these options are unavailable, those with a majority interest in the Florida property can select a qualified representative (Fla. Stat. § 734.102(1)).
Commencement and Probate of Wills Ancillary administration must follow the Florida Probate Rules. Wills and codicils that meet the necessary legal requirements will be admitted to probate (Fla. Stat. § 734.102(2)-(3)).
Bond Requirement and Creditor Notice Ancillary personal representatives must post a bond similar to those in original administrations. They are also required to serve and publish a notice to creditors as per chapter 733, barring claims not filed accordingly (Fla. Stat. § 734.102(4)-(5)).
Distribution of Property After settling all expenses and claims, the court can order the remaining property to be transferred to the foreign personal representative or directly distributed to the beneficiaries (Fla. Stat. § 734.102(6)).
Powers of Ancillary Personal Representatives Ancillary personal representatives have the same rights and powers as other Florida personal representatives. This includes managing and settling the estate, and selling, leasing, or mortgaging property to pay debts and claims, provided these claims are not barred by state law (Fla. Stat. § 734.102(7)).
HAVE MORE QUESTIONS? GIVE US A CALL If you need to transfer assets via a Florida probate proceeding, we can help. Our office handles hundreds of estates per year, many of them ancillary administrations. We offer free, no obligation consultations.
Brice Zoecklein, Esq.
813-501-5071
Disclaimer:The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice. This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.
Important Statutory Provisions
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.
734.1025 Nonresident decedent’s testate estate with property not exceeding $50,000 in this state; determination of claims.—
(1) When a nonresident decedent dies testate and leaves property subject to administration in this state the gross value of which does not exceed $50,000 at the date of death, the foreign personal representative of the estate before the expiration of 2 years after the decedent’s death may file in the circuit court of the county where any property is located an authenticated transcript of so much of the foreign proceedings as will show the will and beneficiaries of the estate, as provided in the Florida Probate Rules. The court shall admit the will and any codicils to probate if they comply with s. 732.502(1), (2), or (3).
(2) The foreign personal representative may cause a notice to creditors to be served and published according to the relevant requirements of chapter 733. Claims not filed in accordance with chapter 733 shall be barred as provided in s. 733.702. If any claim is filed, a personal representative shall be appointed as provided in the Florida Probate Rules.
734.104 Foreign wills; admission to record; effect on title.—
(1) An authenticated copy of the will of a nonresident that devises real property in this state, or any right, title, or interest in the property, may be admitted to record in any county of this state where the property is located at any time after 2 years from the death of the decedent or at any time after the domiciliary personal representative has been discharged if there has been no proceeding to administer the estate of the decedent in this state, provided:
(a) The will was executed as required by chapter 732; and
(b) The will has been admitted to probate in the proper court of any other state, territory, or country.
(2) A petition to admit a foreign will to record may be filed by any person and shall be accompanied by authenticated copies of the foreign will, the petition for probate, and the order admitting the will to probate. If no petition is required as a prerequisite to the probate of a will in the jurisdiction where the will of the nonresident was probated, upon proof by affidavit or certificate that no petition is required, an authenticated copy of the will may be admitted to record without an authenticated copy of a petition for probate, and the order admitting the will to record in this state shall recite that no petition was required in the jurisdiction of original probate.
(3) If the court finds that the requirements of this section have been met, it shall enter an order admitting the foreign will to record.
(4) When admitted to record, the foreign will shall be as valid and effectual to pass title to real property and any right, title, or interest therein as if the will had been admitted to probate in this state.
