When Ancillary Administration is Needed

Generally

When a nonresident dies with real property located in Florida, an ancillary administration in Florida is almost always necessary to properly transfer ownership of the Florida real property. Ancillary administration in Florida may be necessary for dealing with personal property or credits due from a Florida resident.

Florida Debtor or Tangible Personal Property

An ancillary administration is not necessary to receive payment for a debt secured by Florida property (lien); the debtor can make payment directly to the foreign personal representative. See Florida Statute §734.101(3). Similarly, an individual who is indebted to the estate of the nonresident decedent or has personal property belonging to the estate may make payment or send the personal property to the foreign personal representative (however, proper procedures must be followed). See Florida Statute §734.101(4). Therefore, an ancillary administration may be avoided when dealing with personal property, provided the debtor or property holder cooperates with the foreign personal representative.

Florida Real Property

Upon the death of a nonresident with real property located in Florida, an ancillary administration must be opened and an ancillary personal representative appointed. Where the decedent’s will authorizes sale of property or assets, authorization of the court is not necessary. See Florida Statute §733.613(2), 734.102(7). However, an ancillary personal representative still must be appointed by the court in order to have the authority to sell any property or assets. If the decedent’s will does not authorize sale or the decedent died without a will, then approval by a Florida court is necessary before any sale may take place. Florida Statute §733.613(1).

After all the expenses of administration and claims have been paid, the court may enter an order distributing the assets to the beneficiaries or transfer the assets to the domiciliary estate. Florida Statute §734.102(6).

Short Form Ancillary Administration

There are two shorter forms of ancillary administration available in Florida: (1) when the decedent’s assets are worth $50,000 or less and died with a will; and (2) to admit a foreign will that has already been probated. See Florida Statute §734.1025, & 734.104.

Florida Statute §734.1025 allows for a simpler ancillary administration. Under this section, the foreign personal representative files in Florida an authenticated transcript of the foreign proceedings showing the will and beneficiaries of the estate. This procedures foregoes appointing a personal representative in Florida. However, the foreign personal representative must publish notice to creditors and serve creditors. If a creditor files a claim, then this short form must be converted to a formal ancillary administration and a Florida ancillary personal representative appointed. Take note, this short ancillary administration is not available to individuals who die without a will.

Florida Statute §734.104 is used when the decedent has been dead for 2 or more years or at any time after the domiciliary personal representative has been discharged. Provided the will is admitted in compliance this section, it is deemed “valid and effectual to pass title to real property” in Florida. Authenticated copies of the will, foreign petition for probate, and the foreign order admitting the will to probate must be filed with the Florida ancillary petition.

Florida also allows for a “summary administration” which is shorter than a formal administration (ancillary or domiciliary). This type of administration may only be used if the assets subject to probate are worth $75,000 or less, or if the decedent has been dead for two or more years. See Florida Statute Chapter 735. The summary administration may also be used in ancillary administration provided it meets the aforementioned qualifications.

Notice to Creditors

To transfer ownership of real property in Florida, all creditor claims must be satisfied or barred. Florida law will apply with regards to creditor’s rights for property located in Florida. Therefore, notice to creditors shall be handled in the same manner as a formal probate in Florida under Florida Statutes Chapter 733. Thus, notice must be given to all reasonably ascertainable creditors and notice must be published in accordance with Florida Statutes. See Florida Statutes §733.701, & 733.2121.

Safe Deposit Box

Florida Statute §655.936(2) permits the lessor, at its discretion, to deliver to a foreign personal representative all contents of the decedent’s safe-deposit box if the foreign personal representative has been appointed for three or more months and if the lessor has not received any written notice of appointment of an ancillary personal representative in Florida.
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