Question: I am the personal representative for someone who died out of state and is not a Florida resident. However, the deceased owned land in Sarasota County. Do I need to open an ancillary probate in Sarasota? If so, does it have to be the full formal probate or can it be the expedited administration?
Answer: Even if the decedent’s estate is administered by an out-of-state probate court, assets located in Florida, especially real estate, may have to be administered by Florida’s probate courts. An ancillary probate in Florida may be handled in an expedited way (called a “summary probate”) or a formal probate depending on the facts of the case and the value of the assets. Bach & Jacobs, P.A. frequently assist people with Florida ancillary probate administrations. If the real estate is titled solely in the name of a decedent, then there is no alternative to probate to correctly transfer title upon sale or transfer to the heirs. If you need assistance with the probate of a non-Florida resident’s estate assets in Florida, contact Bach & Jacobs at (941) 906-1231. We can review your case and let you know if summary probate or formal probate is appropriate for your particular Florida ancillary probate proceedings.
Question: What happens to real estate in Florida if the owner is an out-of-state resident who dies without a will?
Answer: When someone dies without a will or ‘intestate’, there is no will to file with the court. However, the real estate in Florida may have to be dealt with in Florida’s probate courts through “ancillary administration” of the estate. Ancillary administration is usually required when the Florida real property is titled solely in the name of the decedent. First, probate must be commenced in the out-of-state county where the decedent lived, called “domiciliary proceedings.” To commence the ancillary administration in Florida, the petition for administration and the court order appointing a personal representative in the other state will need to be filed with the Florida court where the real estate is located. These documents from the domiciliary proceedings must also be “authenticated,” meaning it must have a court seal from the out of state court as well as language that the document is a certified or authenticated copy of the original. The team at Bach & Jacobs handles ancillary estate administration in Florida for non-resident estates. Contact the firm if you need assistance with ancillary administration.
Question: How do I know if I have an authenticated copy of a foreign will?
Answer: Florida law allows for ancillary administration for a resident of another state that dies leaving assets in Florida. The law requires the admission of an authenticated copy of a non-resident’s will if the will devises or bequeaths real estate in Florida. This means that the clerk of the Florida court where the ancillary probate is to occur must be given a copy of the will that has a court seal from the out of state court where the will was filed. You can obtain an authenticated copy by going to the clerk’s office in the county where the will was originally filed and requesting an authenticated copy. A quick way to confirm whether the copy of the will is ‘authenticated’ is to feel for a raised seal on the clerk’s stamp and to look for language that the document is a certified or authenticated copy of the original. If you are the personal representative for a non-Florida resident and need assistance with an ancillary administration in Florida, call Bach & Jacobs at (941) 906-1231 to speak to an attorney.
Question: Does Florida Real Estate Owned by an Out-of-State Resident Always Have to Go Through the Florida Probate Process?
Answer: An “ancillary administration” of the estate is usually required when the property owned by the out-of-state resident is titled solely in the name of the deceased person. This is the only way for title to be properly conveyed to the beneficiaries. However, there may be instances where ancillary probate is unnecessary even though a resident of another state died owning Florida real estate assets. For example, if the Florida real estate is titled jointly between the deceased person and another person or entity, the real estate would be transferred to the other person or entity without the need for ancillary administration. Another example that would avoid ancillary probate is where the real estate is titled in the name of a trust, rather than in the name of the decedent. If you are the personal representative for a non-Florida resident and want to know if an ancillary administration is required in Florida for the estate, call Bach & Jacobs to speak to an attorney.
Question: My ex-spouse is a trust fund beneficiary, but has not paid me court-ordered child support in over 2 years. Can I attach a lien on my ex’s trust income?
Answer: Florida law allows a trust beneficiary’s child, spouse, or former spouse with a court judgment for support or maintenance to reach the beneficiary’s interest by “attaching” a claim for the present or future trust distributions in some cases. However, there are instances where you would not be able to reach the trust income. For example, if the distributions to your ex-spouse are not required but are simply within the discretion of the trustee, then you may not be able to attach your claim for child support to the ex-spouse’ s trust income. If you need legal advice regarding claims against a trust or a trust beneficiary’s income, contact Bach & Jacobs for assistance.
Question: What happens when someone dies owning real estate or other assets in Florida, but is a resident of another state?
Answer: If a deceased person was a resident of a state other than Florida, the estate will be administered in the county and state of residence. However, even if the decedent’s estate is administered by the probate court of the state of residency, assets located in Florida, especially real estate, may have to be administered by Florida’s probate courts. This is called “ancillary administration” and requires that the Florida court issue letters of administration to a personal representative qualified to act under Florida law. If you are the personal representative for a non-Florida resident and need assistance with opening an ancillary administration in Florida for the estate, call Bach & Jacobs to speak to an attorney.
The Supreme Court of the United States’ ruling that a portion of the Defense of Marriage Act (“DOMA”) is unconstitutional may allow same sex spouses who were legally married under state law at the time they filed individual Federal income tax returns to amend past tax returns and receive a refund. The DOMA ruling’s implications will also affect the gift and estate tax marital deduction, portability of a spouse’s estate and gift tax credit, retirement benefits, and the future tax filing status for same sex spouses. Many tax experts believe that the Court’s ruling has retroactive effects. This means that same sex spouses may be able to amend previous tax returns to claim refunds for prior tax years if the taxpayers can show that they would have paid less if the marriage had been recognized by the IRS. Same sex couples can contact tax expert Fred Jacobs at Bach & Jacobs to review the effect that the Supreme Court’s decision may have on their federal taxes.
Question: My widowed father recently died and his will directed that his estate should be split between my brother and me. My brother is well off, where I have struggled financially. To help me out over the last few years my dad gave me his car and several cash gifts. Will those prior gifts be counted against my inheritance or will my brother and I still split the existing assets dad had at his death?
Answer: Whether those prior or “inter vivos” gifts will be counted against your inheritance depends on whether your father made a written declaration contemporaneous with the gifts that they were “advancements” against your inheritance. If he did, or if you acknowledged in writing that they were indeed advancements to be counted against your inheritance, then the value of the car and cash at the time you received it could be used to reduce your inheritance after your father’s death. Otherwise, these lifetime gifts are ignored and the assets remaining in your father’s estate are split equally upon his death. To avoid confusion, it is best if your father had documented these gifts in writing. Any lifetime gifts to an individual totaling greater than $14,000 in a calendar year should be reflected on your father’s tax returns. The team at Bach & Jacobs assists families in administering estates after the passing of a loved one. Contact Bach & Jacobs at (941) 906-1231 if you need assistance with probate administration.
Assets pass to the family members the state presumes to be the intended heir. If you pass away with a spouse and children surviving you, 100% of your estate would go to your spouse. If you pass away with a spouse and children from a previous relationship(s), 50% of your estate will go to your spouse and 50% of your estate would be divided among your children.
If you need legal advice for estate planning, Asset Protection Planning, or tax planning, please contact our office at (941) 906-1231 for an initial consultation.
Question: What happens when someone dies without a will in Florida?
Answer: When someone dies ‘intestate’ (without a will), the State of Florida has an established protocol and priority that sets forth how a decedent’s assets are distributed. With an intestate estate, the decedent’s spouse typically receives half or all of the decedent’s estate. The amount the spouse receives depends on other family dynamics, such as whether the decedent or the surviving spouse has children from a prior spouse.
If your spouse or parent has recently died without leaving a will, Bach & Jacobs can help guide you through the process of distributing your loved one’s assets. If you need legal advice for estate planning or would like a review of your existing legal documents, including a prior will, please contact our office at (941) 906-1231 for an initial consultation.
