Understanding Ancillary Probate: What Happens When You Own Property in Different States

For many people, Florida is a second home. They may only live here part of the year while still maintaining owning a home or real property in another state. But how does this work when it comes to your will? That is, do you need to have separate wills for your Florida and non-Florida real properties?

You do not need separate wills. But you do need to be aware of the possible need for additional probate proceedings following your death. This is because when it comes to real property, the state where your real property is located has jurisdiction over the property in any probate proceedings.

So, let’s say Jessica owns a home in Florida and another home in Pennsylvania. She considers herself a Florida resident and spends most of her time in this state. When Jessica passes away, her personal representative (executor) will open a probate proceeding in Florida. But the personal representative must also open a secondary–or ancillary–probate in Pennsylvania.

The ancillary probate is necessary only to dispose of the Pennsylvania property under the terms of Jessica’s will. The Pennsylvania court has no jurisdiction over any of Jessica’s Florida property, which includes non-tangible assets such as her bank accounts. However, any of Jessica’s creditors who happen to be located in Pennsylvania may file a claim against either the Florida or Pennsylvania probate estates.

Can Ancillary Probate Be Avoided?

There are a number of options that can help keep your real property out of probate entirely. These options include:

  • Living Trust. With a trust, you transfer title to your real property to a trustee, who can be you during your lifetime. Upon your death, a successor trustee named in the trust document assumes control of the property and distributes it according to your wishes. Since the property is owned by the trust, it is not subject to probate.
  • Joint Ownership. When two people own a property jointly with “survivorship” rights, the surviving co-owner becomes the sole owner upon the joint owner’s death. So, if you and your spouse co-own real property, upon the first spouse’s death, the surviving spouse simply becomes the sole owner; the property does not pass through the first spouse’s probate estate.
  • Lady Bird Deed. You can also bypass probate by creating what is known as an “enhanced life estate” or “Lady Bird” deed. With this type of deed, you name a “life tenant” (typically yourself) who is entitled to reside on the property until they die.  When the life tenant dies, ownership passes to the beneficiary or “remainderman,” who effectively inherits without the need for probate.

Contact Us Today

If you own real property outside of the state of Florida, it is important that you take steps to address it in your estate plan.   The experienced Florida estate planning and elder law attorneys at Morgan Law Center can provide you with professional guidance and advice. Contact us today at (386) 755-1977 to schedule a consultation.