Florida Elder Law & Estate Planning Blog

Surprise, it’s ancillary probate


People who ask The Karp Law Firm to handle the Florida probate of a loved one’s estate often have an inkling of what’s ahead: just about everyone has heard horror stories about the probate courts, particularly the courts in Florida. This negative reputation is overblown in some respects, especially for simple estates. Still, it is fair to say that the probate process can be glacially slow, require mountains of paperwork, and incur significant administrative and legal expenses. Probate can be a tedious and frustrating process for a family trying to deal with its grief, resolve family turmoil, wrap things up and move on.

Two probates, twice the aggravation

So you can imagine what happens when we have to tell a family that they face more than one probate. That there will be two. Or in some cases, three. Here’s why: When a Florida resident owns real property in a state outside Florida, and that property is devised in a will (or if the decedent has died intestate), the out-of-state property must be probated in the state where it is located. This is called an ancillary probate. Ancillary probate is necessary because the Florida courts have no authority to transfer the title of real property to beneficiaries for property outside this state.  Ancillary probate entails retaining a lawyer in the other state and, of course, incurs additional fees and delays.

This brings us to two related points. The first is that it is vital to be be forthright and thorough when discussing your assets with your estate planning attorney. This is not intended to be an infringement on your privacy. A competent attorney requires all this information to provide you with intelligent advice, including advice about possible ancillary probate.

The second point is the danger of do-it-yourself estate planning. Many cases of unexpected ancillary probate I’ve encountered have their roots in the decedent’s decision to create a plan using software or pre-printed forms, foregoing legal counsel. In my experience, more often than not this approach turns out to be a  penny-wise and pound-foolish. And, of course, once the will-maker has passed away, there is no going back to revise documents.

How to avoid the second probate

So how can you spare your family the inconvenience of an ancillary, out-of-state probate? If you’re married you may wish to co-own the out-of-state property jointly with right of survivorship with your spouse, so it can pass without the need for probate when the first spouse dies. You can also co-own property jointly with right of survivorship with an adult child, but that presents its own problems, exposing the property to your child’s potential creditors.

For the vast majority of Florida residents who own out-of-state property, the simplest and most effective solution is to create a revocable living trust and to title the out-of-state property in the name of the trust. Properly done, this approach will allow your family to avoid an ancillary out-of-state probate, as well as avoid Florida probate.