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: Before my father passed away, he told me he had appointed me personal representative of his estate. I know I need to initiate a probate proceeding to administer his estate, but I can’t find his will. What do I do?
Answer: If someone dies without a will, the distribution of the decedent’s estate is governed by the laws of intestacy and the decedent is considered to have died “intestate.” This should only be used when one has no known last will. If a will was known to exist but is lost, Florida has procedures to establish a lost or destroyed will so that the estate is administered according to the deceased’s last will. The essential elements of the procedure are to (1) submit a “correct copy” of the will; (2) provide testimony of at least one “disinterested witness” to the will signing and (3) provide evidence proving that the deceased did not intend to destroy the will. Bach & Jacobs, P.A. has experience in complex probate matters. If you are seeking to have a lost will admitted to probate, contact the attorneys at Bach & Jacobs at (941) 906-1231 for assistance.
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: 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.
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.
Bach & Jacobs, P.A. is pleased to announce that Sean M. Byrne will be joining the firm this summer.
Mr. Byrne’s practice focuses on trust & estate planning, probate, guardianship, and elder law litigation. Mr. Byrne begins with Bach & Jacobs on July 22. Prior to joining Bach & Jacobs, Sean was the in-house counsel for the Conservation Foundation of the Gulf Coast where he provided options to landowners, high net worth individuals, and their financial advisors seeking to reduce federal income taxes and local property taxes through land conservation and philanthropy. Sean will continue to represent parties to real estate transactions involving environmentally sensitive lands.
Mr. Byrne is a member of the Florida Bar, the American Bar Association, the Southwest Florida Estate Planning Counsel, the Sarasota County Bar Association and the Young Lawyers Division. He is a graduate of Leadership Sarasota County and is the founder of the nationwide Next Generation Conservation Attorneys network, currently sponsored by the national Land Trust Alliance.
“Sean combines a sharp legal mind and a diligent work ethic with his genuine concern for senior citizens and their families. He will be an outstanding addition to our strong team of professionals who put our clients’ interests at the heart of everything we do,” said Babette B. Bach, founder of Bach & Jacobs and a Board certified attorney by both the Florida Bar and the National Academy of Elder Law Attorneys (CELA).
Bach & Jacobs practices estate planning, probate, guardianships, tax and business law, Medicaid, VA benefits and land conservation transactions.
Sean M. Byrne can be reached at (941) 906-1231 or at [email protected].
Being a trustee requires significant legal knowledge and if one does not perform their duties properly, a trustee may be personally liable. That’s why it’s important to have legal guidance.
A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” If you have been appointed the trustee of a trust, this is a strong vote of confidence in your judgment, ethics and skill sets.
A trustee’s duties include locating and protecting trust assets, investing assets prudently, distributing assets to beneficiaries, keeping track of income and expenditures, and filing taxes. As a trustee, you have a fiduciary duty to the beneficiaries of the trust, meaning that you have an obligation to act in the best interest of the beneficiaries at all times.
A trustee is usually entitled to hire an attorney (and other professionals like an accountant) to assist in trust administration. The attorney’s fees will be paid from the trust funds. While hiring an attorney will cost money, not having an attorney at all could cost a trustee much more if errors are made.
A trust can be administered without court involvement, but that doesn’t mean that the administration is simple. There are many areas where problems can arise — for example, if assets aren’t invested properly, taxes are late, or if proper records aren’t kept. If something goes wrong during the administration of the trust, the trustee can be removed and held personally liable for any costs incurred or losses suffered. Even if a spouse is the trustee, he or she should still consult with an attorney.
If you need legal advice for trust administration, probate, tax advice, estate planning, Medicaid planning, or VA planning, please contact our office for an initial consultation at (941) 906-1231.
