Probate, trust, guardianship and inheritance litigation
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Ancillary Probate Administration in Florida

By:  Jeffrey Skatoff, Esq.

Ancillary probate in Florida is required to pass ownership of assets in Florida to beneficiaries, where the decedent was living in another state at the time of death.  If the state of residence has (or had) a probate administration, the ancillary administration can proceed in Florida.  If there was no probate administration in the home state, the procedure in Florida is technically called non domiciliary probate.

When is Ancillary Probate Administration Required in Florida?

When the decedent owned real estate in Florida, ancillary administration will be required to pass ownership of the real estate to the heirs.  The statute governing administration, Section 734.102, 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.

Ancillary administration applies to assets, not creditors.  Therefore, a creditor, if located in Florida, may file a claim in the domiciliary estate of the decedent.  If there are also assets located in Florida, the creditor could, as an option, open ancillary administration in Florida – especially if the heirs of the estate are being dilatory or are otherwise acting to defeat claims through the passage of time.

How Does Ancillary Probate Work in Florida?

Ancillary administration follows the same procedure as a regular domiciliary estate in Florida, including terms of bond, notice to creditors, and the ability to sell property and pay debts.  The biggest difference is that, at the conclusion of the ancillary administration, the assets can be distributed to either the beneficiaries or to the domiciliary estate, for further administration there.

If the property owned by the decedent in Florida is valued at less than $50,000 and the decedent died with a will, the personal representative in the domiciliary administration may be able to conduct a “summary” ancillary administration as set out in Florida Statute Section  734.1025.  In order to conduct the “summary” ancillary administration, the domiciliary personal representative needs to file an authenticated or exemplified copy of the foreign probate administration showing the will and beneficiaries with the clerk of court where the Florida property is located. The domiciliary personal representative will then need to notice the creditors of the decedent in accordance with the Florida Probate Rules. If any creditors file a statement of claim, the administration must be conducted as a traditional ancillary administration with a personal representative appointed. If no statements of claim are filed within the appropriate time period, the assets can be distributed to the domiciliary estate.

Who is Appointed Personal Representative of an Ancillary Probate Estate in Florida?

Regarding the appointment of a personal representative in the Florida ancillary estate, Section 734.102 sets forth an order of preference.  A person named in a will to administer the Florida estate has first preference, followed by a person appointed as the domiciliary personal representative, assuming the person is otherwise qualified to serve.  In the absence of the prior two preferences, a distinction is made between testate estates (where the majority in interest of the beneficiaries decides if persons named cannot or will not serve) and intestate estates, where the surviving spouse has preference.

In Piloto v. Lauria, 45 So. 3d 565 (Fla. Dist. Ct. App. 2010), the court handling the domiciliary estate in Venezuela held that the children of the decedent were a majority of the heirs.  The estate was intestate and no personal representative had been appointed in Venezuela.  The children sought to name the ancillary personal representative in Florida, and the surviving spouse also sought appointment.  In ruling in favor of the wife, the court explained:

Subsection (1)’s first four sentences all address a situation in which the decedent dies testate, that is, with a will. Subsection (1)’s fifth sentence (underlined above) is the only sentence which addresses what occurs “[i]f the decedent dies intestate.” In that situation, “the order of preference for appointment of a personal representative as prescribed in this code shall apply.” As the circuit court found, that language directs us to section 733.301(1)(b), Florida Statutes (2008), which provides that, in granting letters of administration in intestate estates, the order of preference is “[t]he surviving spouse” followed by “[t]he person selected by a majority in interest of the heirs.” Such an interpretation does not conflict with subsection (4)’s insistence that “[a]ll proceedings for appointment and administration of an estate shall be as similar to those in original administrations as possible.” Here, the original administration did not involve the appointment of any personal representative, so appointing the wife as the ancillary personal representative does not conflict with the original administration.

How Do the Ancillary Estate and the Domiciliary Estate Interact?

Because the law in each state varies regarding creditor claims, intestate succession, interpretation and meaning of language, and even the formalities for making a will, which state’s law applies can determine the outcome of a dispute where probate in more than one state is taking place.

The starting point is the United States Supreme Court decision of Jones v. Habersham, 107 U.S. 174 (1883), which holds that the law of the state in which real estate is located controls the disposition of such real estate.

Regarding creditor claims, if Florida is the ancillary estate, Florida Statute Section 734.102(7) provides that “No property shall be sold, leased, or mortgaged to pay a debt or claim that is barred by any statute of limitation or of nonclaim of this state.” Clearly, an out of state creditor cannot pursue a late (in Florida) claim against a Florida ancillary estate.  But Section 734.102(6) provides that the ancillary property in Florida may be distributed to beneficiaries or transferred to the domiciliary estate.  So what happens when a creditor seeks to collect its claim in Florida when the claim would be viewed as untimely under Florida law?

In Staum v. Rubano, 120 So. 3d 109 (Fla. Dist. Ct. App. 2013), the court held that the creditor with a late claim could still pursue its claim under the laws of the domiciliary estate, which a little “help” from the rules governing Florida ancillary administration.

The decedent died domiciled in New York, owning property in Florida.  A nursing home in New York sought to collect on its bill for care, and filed claims in both the Florida and New York probates.  The claim would be considered late under Florida law, but was not late under New York law.

The nursing home sought to compel an accounting of the Florida ancillary estate, and to compel the ancillary estate in Florida to transfer its assets to New York, so it could be paid under its timely claim filed in the New York probate.  The Florida court agreed, as follows:

However, to the extent the circuit court found that the nursing home’s pending claim against the New York domiciliary estate was untimely, we reverse. We are aware of no authority providing a Florida court with jurisdiction to determine that a creditor’s pending claim against a foreign domiciliary estate is untimely.

Because the nursing home’s claim against the New York domiciliary estate remains pending, we reverse the court’s second finding that the nursing home is not an interested person. The distribution of the ancillary estate’s assets may adversely affect the domiciliary estate’s ability to satisfy the nursing home’s New York claim. See § 734.102(6), Fla. Stat. (2011) (HN5 “After the payment of all expenses of administration and claims against the estate, the court may order the remaining property held by the ancillary personal representative transferred to the foreign personal representative or distributed to the beneficiaries.”).

Thus, regardless of the untimeliness of the nursing home’s claim against the ancillary estate, the nursing home remained an “interested person” in relation to both the ancillary estate and the domiciliary estate, and had standing to file its petition to compel an accounting of the ancillary estate and to transfer the ancillary estate’s assets to the domiciliary estate. See Smith v. DeParry, 86 So. 3d 1228, 1235 (Fla. 2d DCA 2012) (HN6 “Under the probate code, the term ‘interested person’ refers to a person’s or entity’s standing, i.e., the right to notice and an opportunity to be heard in a particular proceeding pending in a probate or guardianship matter.”); Fla. Prob. R. 5.150(b) (2011) (“On the petition of an interested person . . . the court may require the personal representative . . . to file an accounting or return not otherwise required by statute or rule.”).

Based on the foregoing, we reverse the circuit court’s order granting the personal representative’s motion to dismiss the nursing home’s petition to compel an accounting of the ancillary estate and to transfer the ancillary estate’s assets to the domiciliary estate.




Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

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