NON-RESIDENT DECEDENTS WITH FLORIDA

When a resident of another state dies owning real estate in Florida, proceedings are necessary in Florida to transfer the property. Even if a has been appointed in the decedent's home state, neither that person nor the home state's court has jurisdiction over the Florida property. As a result, the out-of-state personal representative cannot validly execute a deed transferring the Florida property.

This issue often comes up when a family member is trying to sell a non-resident decedent's Florida property. In these circumstances, there are 4 alternatives:

 Admission of the Foreign Will to Record in the Florida County where the property is located;  An Ancillary Probate proceeding;  A Short Form Ancillary Proceeding; and  Summary Administration.

Admission of the Foreign Will to Record. This is by far the easiest, quickest and least expensive alternative. An authenticated copy of the will of a nonresident that devises Florida real property, or any right, title, or interest in the property, may be admitted to record in any Florida county where the property is located at any time after 2 years from the death of the decedent or at any time after the domiciliary personal representative has been discharged if there has been no prior proceeding to administer the estate of the decedent in Florida.

This is only available to testate estates (with a will) that have been fully probated in another state. Further, the will must have been executed with the formalities required by Florida law.

A Petition to Admit a Foreign Will to Record may be filed with the Florida court by any person and shall be accompanied by authenticated copies from the out-of-state court of the foreign will, the petition for probate, and the order admitting the will to probate.

If the Florida court finds that the requirements of this law have been met, it will enter an Order Admitting the Foreign Will to Record. When admitted to record, the foreign will shall be as valid and effectual to pass title to real property and any right, title, or interest therein as if the will had been admitted to probate in Florida. Title would be vested in those persons to whom the decedent has devised it in the will, and those devisees must personally convey title to any third party.

Ancillary Probate Proceeding. Once a personal representative (or executor) has been appointed by the court in the decedent's home state, he or she can petition the Florida court for authority to act as an ancillary personal representative in Florida. Section 734.102 of the Florida Statutes provides:

"If a nonresident of this state dies leaving assets in this state, credits due from residents in this state, or liens on property in this state, a personal representative specifically designated in the decedent's will to administer the Florida property shall be entitled to have ancillary letters issued, if qualified to act in Florida. Otherwise, the foreign personal representative of the decedent's estate shall be entitled to have letters issued, if qualified to act in Florida. If the foreign personal representative is not qualified to act in Florida and the will names an alternate or successor who is qualified to act in Florida, the alternate or successor shall be entitled to have letters issued. Otherwise, those entitled to a majority interest of the Florida property may have letters issued to a personal representative selected by them who is qualified to act in Florida. If the decedent dies intestate and the foreign personal representative is not qualified to act in Florida, the order of preference for appointment of a personal representative as prescribed in this code shall apply." This alternative does not require that the estate be testate (have a will), but it does require the appointment of a Florida personal representative and the conducting of a full formal probate proceeding in Florida.

Short Form Ancillary Administration. Section 734.1025 provides a less cumbersome procedure when the value of the property subject to Florida probate does not exceed $50,000. The Statute reads:

" When a nonresident decedent dies testate and leaves property subject to administration in this state the gross value of which does not exceed $50,000 at the date of death, the foreign personal representative of the estate before the expiration of 2 years after the decedent's death may file in the circuit court of the county where any property is located an authenticated transcript of so much of the foreign proceedings as will show the will and beneficiaries of the estate, as provided in the Florida Probate Rules."

Summary Administration. If the total value of the property subject to Florida probate is less than $75,000, or the decedent has been dead for at least 2 years, Summary Administration is available to non- resident decedents.

Summary Administration is a procedure available for the administration of estates under $75,000 or when the decedent has been dead for more than two years. It avoids the necessity of the appointment of a personal representative. It is accomplished by petitioning the Court to order the distribution of the decedent’s assets to those entitled to it under the Will or under law. If the Court deems the petition to be proper, it will issue an Order of Summary Administration which authorizes the assets to be distributed to the proper beneficiaries.

If you qualify and elect to use Summary Administration, the process becomes very simplified. Formal administration takes a minimum of 5 months to complete under Florida law and it is not uncommon for routine probate estates to last a year or more. A summary administration proceeding can be completed in a matter of months. This is because a personal representative does not have to be appointed, creditors do not have to be notified and there is no three month claims period. The court simply issues an order stating who is entitled to distribution of the decedent's probate estate.

If the estate qualifies for Summary Administration because its value is less than $75,000, then all claims or indebtedness of the estate must have been paid or provisions for payment have been made. Therefore, in the Petition for Summary Administration, you will be certifying to the Court that you know of no debts owed by the decedent that have not already been paid or provisions for payment have been made. This is important because when an Order of Summary Administration is issued, the petitioner becomes personally liable for all lawful claims and demands against the estate of the decedent. However, this liability cannot exceed the gross value of the estate property actually received by the petitioner.

Larger estates can qualify for Summary Administration if the decedent has been dead for at least 2 years. Since the statute of limitations for creditors to file a claim against a decedent's estate is 2 years, there is no need for the claims procedure of formal administration.

Because of the simplicity and much shorter process, the expenses of summary administration are considerably less than those of formal administration. The attorney's fee is reduced. There is no personal representative to pay a fee to, and there are no costs to publish notices to creditors.