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Avoiding Ancillary Probate in Florida

Florida is one of the most popular destinations in the country for seniors to vacation during the winter months. While some seniors rent condominiums or stay in recreational vehicles, others buy property in the state to use as a second home. However, one major problem that arises with the purchase of property in a second state, which most people do not consider when estate planning, is ancillary probate.

What Is Ancillary Probate?

Ancillary probate occurs when a nonresident purchases property in the state such as a home, condominium, commercial building, vacant lot, or other type of land and the nonresident dies with the property solely in his name. Although the rest of the nonresident’s estate may get to skip probate in his resident state, the secondary property must go through probate in the ancillary state.

Ancillary probate adds expenses to the overall costs relating to an estate, in addition to causing all kinds of unforeseen complications. Florida’s ancillary probate laws are particularly strict given the number of seniors with secondary property in the state.

Florida Ancillary Probate Law

In Florida, ancillary probate proceedings can get expensive for two main reasons. The first reason is that Florida Probate Rule 5.030 requires that “every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.” This means that a Florida licensed attorney must be in charge of the ancillary probate proceedings.

The second reason that Florida ancillary probate can be so expensive is that the Florida Probate Code sets the fees for attorneys to charge for doing ancillary probate work. The fees begin at three percent of the total value of ancillary probate property located in Florida and only increase from there.

How to Avoid Ancillary Probate in Florida

In order to avoid the process of ancillary probate in Florida, there are four options to shield your real estate or second home. These options include:

Joint Ownership: Florida real estate can be titled with joint names that also have a right of survivorship. If you are married, this type of title is called tenancy by the entirety. When one owner dies, the right of survivorship passes the title automatically to the remaining owner(s).        

Enhanced Life Estate Deed: This is a special type of life estate deed where the owner of the property is considered a life tenant, and on the owner’s death the property passes to the remaindermen of the deed outside of probate.

Ownership in a Business Entity: If the Florida property is a business, commercial, or rental real estate, the owner can transfer the property into a business entity such as a limited liability company or corporation. This converts the real estate into personal property of the owner.

Ownership in a Trust: The final option to avoid ancillary probate is for the owner of the secondary property in Florida to transfer the title into a trust. The most common option is to place the property in a revocable living trust.

A Boca Raton Attorney Can Help You Avoid Ancillary Probate

Ancillary probate for secondary property in Florida adds unnecessary costs and headaches to the estate process. If you or a loved one owns a secondary home, business, or other real estate in Florida, you need an experienced attorney to explain to you what your options are. With years of experience helping people in Florida with their estate planning and real estate needs, call or contact the Law Offices of Larry E. Bray, P.A. in Boca Raton and West Palm Beach for a free and confidential consultation of your case.

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