The Second Probate Case Nobody Warns Snowbirds About

Every winter, thousands of northerners settle into a condo in Boca Raton or a bungalow near West Palm Beach and call it the good life. What rarely makes the packing list is a plan for what happens to that Florida property after the owner dies.

Here is the catch. A will probated in Ohio or New York does not automatically reach real estate in Florida. The home state court has no power over property sitting here, so the family often faces a second court case, called an ancillary probate, just to deal with the Florida piece.

How Florida Handles Out-of-State Owners

Under section 734.102, Florida Statutes, when a nonresident dies leaving assets in Florida, the court can issue ancillary letters so someone has legal authority over those assets. The person named in the will to handle Florida property gets first priority. If no one is named, the home state personal representative is next in line, but only if he or she is qualified to serve in Florida, and Florida limits which out-of-state residents can serve.

The case looks a lot like a regular Florida estate. The representative posts a bond, creditors get formal notice, and the court supervises the process. Once expenses and valid claims are paid, the court can send what remains to the home state representative or distribute it to the beneficiaries directly.

Small Estates and the Two-Year Mark

Florida does offer a shortcut in limited cases. Section 734.1025 lets the out-of-state representative of a nonresident who left a will file an authenticated transcript of the home state case in the Florida county where the property sits, although a Florida personal representative must still be appointed if any creditor files a claim. It only applies when the Florida property is worth $50,000 or less, and the filing must happen within two years of death. Many Florida condos will exceed that.

Separately, section 734.104 allows an authenticated copy of a will probated elsewhere to be recorded in the county where the real estate is located, under certain conditions. Title companies may still have their own requirements, so check with one before assuming the recording is enough.

Ways to Avoid a Second Case

Planning can often keep Florida property out of probate court altogether. A few options worth discussing:

• Moving the Florida property into a revocable trust while you are alive
• Using an enhanced life estate deed
• Holding title with a spouse as joint owners with right of survivorship
• Naming a Florida-qualified personal representative in your will
• Asking a title company early whether it would insist on an ancillary case

None of these fits every family, and a mistake in how property is titled can create new problems. That is why planning should happen while everyone is healthy and the property is still yours.

Wondering whether your Florida place will trigger a second probate, or dealing with an out-of-state loved one’s estate right now? The Law Offices of Larry E. Bray, P.A. helps families sort this out. Reach out to our West Palm Beach probate lawyers at 561-571-8970 and we will tell you where you stand and what comes next. Clients in Boca Raton can expect the same straightforward answers.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0734/0734.html