When someone dies in Florida owning assets titled solely in his/her name, the deceased person’s estate will likely go through ancillary probate. In this article, you will find out what ancillary probate is and why you should avoid it at all costs.
Ancillary Probate in Florida – The Fundamentals
As provided by Florida Statutes §734.102, the estate of a non-resident who dies owning certain types of assets within state jurisdiction must go through ancillary probate. In this regard, the procedure will be necessary in case:
- a non-resident dies and leaves real property in the state of Florida
- a non-resident dies and leaves liens on property located in Florida
- a non-resident dies and leaves credits due from residents in Florida
- a non-resident dies and leaves a company in the state of Florida
- a non-resident dies and leaves a car, boat, or mobile home titled by the state of Florida
Besides the complexity of handling the process itself, ancillary probate results in additional (sometimes costly) expenses to settle a non-resident’s estate. In this context, two factors make ancillary probate proceedings particularly expensive in Florida:
Florida Probate Rule 5.030 requires that, with a few exceptions, every personal representative must be represented by a licensed attorney within the state
Florida Probate Code Sec. 733.6171 outlines the attorneys’ fees a licensed lawyer may charge for handling ancillary probate begins at 3% of the value of the decedent’s assets in Florida
For instance, if a non-resident dies and leaves an ocean-front property worth $500,000, the probate fee charged by the attorney handling the case will begin at $15,000. As it is plain to see, the best approach is to work with an expert estate planning attorney to avoid ancillary probate.
How Do I Avoid Ancillary Probate in Florida? – A Short Guide
Only assets owned in a person’s sole name go through probate. Hence, an alternative for non-residents who want to avoid Florida ancillary probate is co-owning property within state jurisdiction.
In this regard, the best option is to own property either in joint ownership with rights of survivorship or tenancy by the entirety. It is crucial to note that the latter is available only for married couples.
Enhanced Life Estate Deeds
Also known as “Lady Bird deeds,” enhanced life estate deeds provide non-residents in Florida a simple manner to automatically transfer property upon death without the costs and stress involved in ancillary probate.
With this resourceful legal tool, a life tenant (the owner of the property) can pass the ownership of an asset outside of probate to beneficiaries (referred to as “remaindermen”) specified in the deed.
Transferring Title of Property to a Business Entity
Non-residents who own commercial or rental property in Florida have the option to transfer the title of these assets to a business entity established within the Sunshine State. Therefore, as the property is titled in the name of a business, it will not be subject to probate upon its owner’s death.
Setting Up a Trust
Trusts are valuable legal tools to avoid ancillary probate. In a trust, a non-resident can transfer the ownership of the property to a trustee for the benefit of designated beneficiaries. Hence, upon the trustor’s death, the assets held in trust will not be subject to probate.