Ancillary Personal Representative’s Powers and Duties

Management of Property

The ancillary personal representative has the authority to manage and settle the estate, the same as in a domiciliary proceeding in Florida. Florida Statute §734.102(7).

The ancillary personal representative may sell property located in Florida to satisfy local debts regardless of the existence of sufficient assets in the domiciliary estate to pay the debts. See In re Wilson’s Estate, 197 So. 557 (1940). However, property may not be sold to pay a claim that is barred by any statute of limitations or any nonclaim statute. Florida Statute §734.102(7). It is important that the ancillary personal representative satisfy all Florida claims before transferring the assets to the domiciliary estate or beneficiaries, otherwise, the ancillary personal representative can be subject to surcharge (paying Florida creditors from his or her own personal assets). Lehman v. Lucom¸ 78 So.3d 592 (Fla. 4th DCA 2011).

Tax Filing Requirements

Under current law, no return is required to be filed as long as there is no state death tax credit or generation-skipping transfer credit available under federal law. Florida Statute §198.13(4).

If the decedent’s estate is not required to file a federal estate tax return, the ancillary personal representative may sign and file with the court an affidavit (Form DR-312) attesting that there is no estate tax. If a federal estate tax return is required, then the ancillary personal representative must file with the court a Form DR-313.

The ancillary personal representative must file an information income tax return (Form 1041) with the IRS and provide a copy to the domiciliary personal representative. See Treasury Regulation §1.6012-3(a)(3).

 

Closing Ancillary Administration

A final accounting and petition for discharge should be made by the ancillary personal representative in the same fashion as for a Florida domiciliary probate. See Florida Probate Rules 5.400. Once all the claims against the estate are paid, the court may order the remaining property transferred to the domiciliary administration or distributed to the beneficiaries. Florida Statute §734.102(6).

 

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