When a resident of another state dies owning real estate in Florida, proceedings are necessary in Florida to transfer the property. Even if a personal representative has been appointed in the decedent’s home state, neither that person nor the home state’s probate 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. It is usually discovered after the contract has been executed and can jeopardize the ability for the Seller to perform by the Closing Date.

Time can become a major factor. Buyers don’t want to wait months to get clear title. Cost is another factor. The Seller doesn’t want to spend tens of thousands of dollars on a probate proceeding. Depending on the circumstances, it is possible that the procedure needed to effectively transfer the property can be quite simple.

In these circumstances, there are 4 alternatives:

1). Admission of the Foreign Will to Record in the Florida County where the property is located,
2). An Ancillary Probate proceeding,
3). A Short Form Ancillary Proceeding, or
4). 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.

As you can see, 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. The Florida ancillary personal representative must qualify under Florida law. This means that he or she has to be a Florida resident or be related to the decedent. Once appointed, the personal representative conducts the proceedings in the same manner as a Florida probate. This alternative does not require that the estate 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. The Florida Probate Code provides a less cumbersome procedure when the value of the property subject to Florida probate does not exceed $50,000. In this case the out of state personal representative can file the authenticated transcript of the out of state probate proceedings with the Florida court to show the will and beneficiaries.

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 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.

For Sellers looking to complete a transaction for real estate owned by a non-resident decedent, The Law Offices of Dean Hanewinckel, P.A. will review the situation, determine the most effective course of action, and provide good and marketable title to the property.

By: Dean Hanewinckel

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