A lot of people who do not live in Florida own property in Florida. Sometimes it is a vacant lot bought in anticipation of building a home when they retire; sometimes it is an actual house or mobile home or a vacation condo or even a timeshare. And sometimes people who live out of state have bank accounts or other types of investments in Florida.
When someone who is not a Florida resident dies leaving property in Florida, there may or may not need to be a probate in Florida to handle that property.
The first question that needs to be asked is, how was the property titled and was there any sort of beneficiary designation? If another person was a joint owner, in other words, if the property was titled with some sort of survivorship rights, then typically all that needs to be done is to provide a death certificate to the bank or other institution holding the account, or in the case of real estate, to record the death certificate in the county in which the property is located. This also applies where the property was held as tenants by the entirety; where the co-owners were married and the deed or account identifies them as a married couple. And, in the case of many financial accounts, sometimes the person who died named a “pay on death” beneficiary; which means that the bank will simply pay the money over to whoever is named. In all of the above cases, normally there is no need for a Florida probate; the assets pass outside of probate.
If the property does not pass to a joint owner or by beneficiary designation, then you need to determine whether an out of state probate court can transfer the property in Florida. This is going to depend on the nature of the property; very generally, the rule in this country is that ‘intangible’ personal property, which would include such things as bank accounts, CD’s, stocks, and investment accounts are considered to ‘follow’ the owner; if the owner is a Kansas resident who has an account in a Florida bank, then normally a Kansas probate judge can exercise jurisdiction over the Florida bank account even though the bank has no branches or dealings in Kansas; the Kansas judge would appoint an executor in Kansas, the Kansas executor would present paperwork to the Florida bank and the Florida bank should allow access to the Florida bank account. Normally this should not be a problem.
The rule is very different, though, when real estate is involved. The general rule is that a judge in a particular state can only do something with real estate that is located in the state where the judge sits; in the case above, a Kansas judge would not be able to ‘affect title’ or probate any real estate in Florida; you would need some sort of paperwork from a Florida judge to transfer the real property to any heirs. Now, there are some exceptions; this is one area where a living trust can be useful; if the property is held in a living trust there may be a way to avoid probate in Florida; but normally, if the person who died owned the real property in Florida in their own name, you are probably going to have to take this to probate in front of a Florida judge.
What needs to be done is going to depend on how much the property is worth, how long the person has been dead, and what, if anything, has been done in a probate out of state.
If a probate has been opened outside of Florida, then you may need to bring an ‘ancillary’ probate; showing the Florida judge that someone has been appointed executor out of state, getting a Florida personal representative appointed, who may or may not be the same person who is the out-of-state executor, file a Florida inventory, and generally run what amounts to a full blown probate in Florida.
There is also a special procedure for transferring property in Florida for non resident decedents where 1) an out of state executor has been appointed and 2) the property in Florida is worth less than $50,000. To be honest, this is not a method that I favor, for reasons that I will discuss below.
If someone has not been appointed executor out of state, either because there are no out of state assets, or because all of the out of state assets have passed outside of probate, then a Florida probate, i.e., a full administration, can be opened and a Florida personal representative appointed; this is pretty close to a standard probate and largely parallels what would be done in a ‘regular’ probate.
The other alternative is to bring a ‘summary’ administration; this is going to depend upon the value of the estate and how long the person has been dead. A summary administration is available if the total assets of the estate are less than $75,000 and there are no outstanding bills, or if the person has been dead for more than 2 years; in which case there is no limit to the size of the estate that can be brought in a summary administration. This may make a great deal of sense; particularly where there is a relatively low value property in Florida; say, a vacant lot, a lot with an older mobile home, a timeshare or even a lower value home or condo; so long as the property is worth less than $75,000, this may be the way to go. Or, in some cases, where the person has been dead for more than 2 years; sometimes out of state decedents will have their out of state probate started, run, and completed and then after everything is wrapped up, someone realizes that no one did anything with the property in Florida that was owned; if the person has been dead for more than 2 years, a summary administration is almost always the easiest and quickest way to transfer the property.
And this is why I tend not to like the ‘nonresident decedent’ transfer of property I discuss above; if the property is worth less than $50,000 then it is certainly worth less than $75,000 and frequently, it is just as easy to bring a summary administration as to do the non resident decedent transfer.
The exact facts matter; and there are exceptions to everything I’ve discussed, but if you have a question about a probate in Florida, particularly in or near The Villages, Florida, feel free to contact my office.