If you own a condominium, vacation home, or investment property in Florida but your legal residence is in another state, there is a probate issue your family may face after your death that most people have never heard of.
It is called ancillary probate, and for families who are not prepared for it, it means navigating two separate court proceedings in two different states at the same time, each with its own attorney, its own filing fees, and its own timeline.
The good news is that ancillary probate is entirely avoidable with the right planning. Here is what every out-of-state Florida property owner needs to understand.
Quick Answer: You don’t technically have to go through Ancillary probate if the right plan is in place ahead of time, and that’s often preferred. Ancillary probate is a separate Florida court proceeding required when a non-Florida resident dies owning real property in Florida. It runs alongside the primary probate in the deceased person’s home state and requires its own petition, attorney, and timeline. With the right estate planning tools in place before death, ancillary probate can be avoided entirely.
What Is Ancillary Probate?
When someone dies, their estate must go through probate in the state where they were legally domiciled, which is typically the state where they lived permanently and had their primary legal residence. That proceeding is called the domiciliary probate, and it is handled by the courts in the person’s home state.
However, probate courts only have jurisdiction over assets located within their own state. If the deceased person owned real estate in Florida, a Florida court must handle that property separately. That separate Florida proceeding is what is known as ancillary probate, sometimes also called ancillary administration.
Ancillary probate is filed in the circuit court of the Florida county where the property is located. For a condominium in Vero Beach or a home along the Indian River Lagoon in Indian River County, that means the 19th Judicial Circuit Court.
Who Needs Ancillary Probate in Florida?
Florida Statute 734.102 governs ancillary probate administration in Florida and states that an ancillary probate will be mandatory if a non-resident dies: (1) leaving assets in this state, (2) leaving credits due from residents in this state, or (3) leaving liens on property in this state.
This situation is extremely common. A significant portion of property owners in Indian River County communities like Grand Harbor, John’s Island, The Moorings, and along Orchid Island and the Indian River Lagoon are part-time residents from New York, New Jersey, Pennsylvania, Connecticut, Ohio, and other states. Many of them have wills and estate plans in their home states that work perfectly well for their northern assets but do not address their Florida property in a way that avoids ancillary probate.
It is also worth noting that ancillary probate can be required even when the primary estate is quite small. The value of the Florida property does not determine whether ancillary probate is needed; what matters is how the property is titled and whether a probate-avoidance mechanism is in place.
What Does the Ancillary Probate Process Look Like?
Ancillary probate in Florida follows many of the same steps as a standard Florida probate proceeding. A petition must be filed with the circuit court in the county where the Florida property is located. A personal representative must be appointed, subject to Florida’s eligibility requirements. Notice must be given to creditors. The property must be inventoried and appraised. Any outstanding debts or liens against the Florida property must be resolved. Once the court is satisfied that all requirements have been met, the property can be transferred to the beneficiaries named in the will or, if there is no will, according to Florida’s intestacy laws.
One important point: Florida has specific requirements about who may serve as personal representative of a Florida estate. With limited exceptions, the personal representative must either be a Florida resident or a blood relative of the deceased, including a spouse, child, parent, or sibling. If the will names a trusted friend from another state who is not a family member, that person may not be eligible to serve in the Florida ancillary proceeding. This catches many families off guard, particularly when the person named had served perfectly well as executor of the primary estate in the home state.
The ancillary probate process in Florida typically takes several months to a year depending on the complexity of the estate and whether any complications arise.
How to Avoid Ancillary Probate
The most important thing to understand about ancillary probate is that it is not inevitable. It is the result of owning Florida property in a specific way: individually titled, without a probate-avoidance mechanism. Change how the property is titled or structured, and the need for ancillary probate disappears entirely.
There are several tools commonly used by Florida estate planning attorneys to accomplish this:
- A revocable living trust is one of the most comprehensive solutions. When Florida real estate is titled in the name of a trust rather than an individual, it passes directly to the trust’s beneficiaries upon death without any court involvement. The successor trustee steps in, follows the trust’s instructions, and transfers the property, all outside of probate and without the need for a Florida court proceeding.
- A Lady Bird deed, formally known as an enhanced life estate deed, is a Florida-specific tool that allows a property owner to name one or more beneficiaries who will automatically inherit the property upon the owner’s death. During the owner’s lifetime, the property remains fully under their control. They can sell it, mortgage it, or change the beneficiary at any time. At death, ownership transfers to the named beneficiaries automatically, without probate and without the need for any court action.
- Joint ownership with right of survivorship is another approach. When a property is owned jointly by two people with a right of survivorship, the surviving owner automatically inherits the deceased owner’s share without probate. This approach works well in some situations but carries its own planning considerations, particularly for blended families or where the co-owner is not the intended long-term beneficiary of the property.
If Ancillary Probate Is Already Required
If a family member has already passed away and the Florida property needs to go through ancillary probate, the Law Offices of Jennifer D. Peshke, P.A. can guide you through the process. We work with families throughout Indian River County and coordinate with out-of-state attorneys handling the primary estate to make the process as efficient as possible.
Starting the process promptly is important. Florida real estate cannot be sold, transferred, or refinanced during the pendency of a probate proceeding without court approval, which can create complications if the family needs to sell the property quickly.
Frequently Asked Questions
Does ancillary probate apply to personal property like bank accounts or investment accounts? Generally, no. Ancillary probate in Florida is triggered by real property located in Florida.
Can I avoid ancillary probate by putting my children’s names on the deed now? Adding a child or other person to a deed as a co-owner can avoid ancillary probate in some cases, but this approach carries significant risks, including gift tax implications, exposure of the property to the co-owner’s creditors, and potential complications if the co-owner predeceases you or the relationship changes. A Lady Bird deed or trust typically achieves the same goal with far fewer risks.
Does a Florida Will avoid ancillary probate? No. Having a valid Florida will does not avoid ancillary probate. A will still requires court involvement to be validated and implemented. Probate avoidance requires a non-probate transfer mechanism such as a trust, Lady Bird deed, or joint ownership with right of survivorship.
How much does ancillary probate cost in Florida? Costs vary depending on the value of the Florida property and the complexity of the proceeding. Florida law sets guidelines for attorney fees in probate proceedings based on the value of the estate. In addition to attorney fees, there are court filing fees, costs for required notices, and potential appraisal fees. Planning ahead to avoid ancillary probate is almost always less expensive than going through the process.
We Handle Florida Ancillary Probate and Help Families Plan to Avoid It
Whether your family is facing ancillary probate right now or you want to put a plan in place so your family never has to deal with it, the Law Offices of Jennifer D. Peshke, P.A. is here to help. We work with property owners and families throughout Indian River County and the Treasure Coast, and we regularly coordinate with out-of-state counsel for families navigating proceedings in multiple states. Call us at (772) 231-1233 or reach out online to get help.
Jennifer Peshke, Esq. is the founder of the Law Offices of Jennifer D. Peshke, P.A., a full-service law firm located in Vero Beach, Florida. Her practice includes probate administration, real estate law, estate planning, elder law, and more.
This blog post is intended for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. Please consult a licensed Florida attorney regarding your specific situation.