Probate Law

What is Ancillary Probate, and How Can I Avoid It?

You have probably heard the term “snowbird” before.  It is a person from the northern part of the country who moves to a warmer southern state in the winter.  Of course, Florida is the warmer southern state of choice for many, many snowbirds in the United States.  People who do “go south for the winter” tend to come to Florida right after Thanksgiving, go back home for the Christmas holiday, then come back to Florida after the New Year and stay until April.

For many snowbirds, particularly retirees, who have made coming to Florida for the winter a way of life, it makes sense not only to travel to Florida but to own property – typically a vacation home – here in Florida.  Thus, more so in Florida than in many other states, many property owners are non-residents of Florida.  The question becomes:  How are those properties handled after the non-resident passes away?  The answer to that question brings us to the notion of “ancillary probate.”

So, what is ancillary probate?  This article will cover issues involving ancillary probate.  Given that there are additional costs and logistical expenses that come with ancillary probate, most people wish to avoid it.  Accordingly, we will talk about the four main ways to avoid ancillary probate.

Once you have reviewed this blog, and you know that answer to “what is ancillary probate,” you may have additional questions about your own situation.  If so, we welcome you to contact our probate and estate planning attorneys at Doane & Doane.  We have handled all types of probate matters for decades, and we are happy to guide you with regard to ancillary probate as well.  Call us today at 561-656-0200.

What Is Ancillary Probate

Ancillary probate is a required proceeding when a non-resident of Florida dies owning a home, condominium, commercial building, or other type of real estate in Florida.

An ancillary probate proceeding in any state adds additional cost to settling a person’s estate.  In Florida, the ancillary probate proceeding can get quite expensive for the following two reasons:

  • Under Florida Probate Rule 5.030, the person who represents a non-resident decedent’s estate must get the services of a Florida attorney, and
  • Under Florida Probate Code Sec. 733.6171, the fees that Florida attorney may charge for handling an ancillary probate begin at 3% of the value of the decedent’s assets in Florida. Accordingly, a vacation home worth $250,000 could mean a probate fee of $7,500.

How Do I Avoid Ancillary Probate?

Given the substantial cost involved with an ancillary probate proceeding for non-Florida residents who own real estate in Florida, avoiding ancillary probate is worthwhile whenever possible.  There are four main ways in which to avoid ancillary probate.

  1. Own the Property Jointly. With the help of an experienced Florida attorney, you may title the Florida property to include you and one or more people who have the right of survivorship.  That means that when you pass away, any “survivors” on the title automatically receive the property with no need for ancillary probate.
  2. Enhanced Life Estate Deed. Florida law recognizes something called an “enhanced life estate deed,” which allows a life tenant (you, the owner) to pass the real estate outside of probate to beneficiaries that you name in the deed (called “remaindermen”).
  3. Business Ownership. Any commercial property or rental real estate in Florida can be transferred into a business entity.  Thus, the real estate becomes personal property of the business, thereby avoiding ancillary probate.
  4. Trust Ownership. Finally, you may title the Florida property in the name of a trust, like a revocable living trust, which designates how the property is handled and avoids probate altogether.

Of course, with any of these options, you should be sure to consult a Florida estate planning attorney.  You want to be sure that your deed is properly drafted and recorded.

Look to Doane & Doane for Help with Probate and Estate Planning Matters

Founded in 2003 by husband and wife legal team, Randell C. Doane and Rebecca G. Doane, Doane & Doane provides legal and financial services to families, individuals, and businesses throughout Southeast Florida.

Estate planning is about much more than just giving away property.  It is an act of love and kindness, with the ultimate goal of providing for the future financial security of your loved one.  At Doane & Doane, our Wills and Trusts Attorneys West Palm Beach help people plan for retirement, make provisions for loved ones, and minimize tax liability.  Experienced wills and trusts attorneys know which tools to use to get the best results for their clients.  Our lawyers can help you determine which tools are best suited to your specific circumstances.

When it comes to probate matters, Florida fiduciaries seek the assistance of the attorneys at Doane & Doane, P.A. to administer and manage their trusts and estates.  Notably, the founding partners of Doane & Doane are board certified West Palm Beach Probate Attorneys.  With the additional advantage of certified public accountancy in their backgrounds, they present a unique combination of skills and experience which enables them to effectively settle, administer, and manage clients’ trusts and estates.

We know that overseeing an estate can be a time-consuming and complicated process. We help clients every step of the way.  Our probate administrative services include:

  • Proving in court that a deceased person’s will is valid
  • Identifying and inventorying the deceased person’s property
  • Property appraisal
  • Supervising and arranging the estate’s debts and taxes
  • Distributing property as directed by a will
  • Transferring title and ownership of assets to the proper beneficiaries
  • The personal representative, executor, or executrix must follow Florida law to conclude the decedent’s affairs, including:
  • Giving the proper notices to proper parties
  • Collecting the decedent’s property
  • Receiving claims against the estate
  • Paying valid claims and disputing others
  • Distributing estate property according to the will or state law
  • Selling estate property to cover debts or allow for proper distribution, if necessary

Call us at Doane & Doane, P.A., to help you if you are faced with an ancillary probate matter, or if you own property in Florida and wish to avoid ancillary probate.  You can reach us at 561-656-0200.  Call us today.