We are often confronted with Florida probate and trust court cases that involve out-of-state real property. For example, a Florida decedent may have owned real property in New York, but shortly before the decedent’s death, an unlawfully procured deed was executed transferring the real property to another person.
Many people assume that if out-of-state real property is involved, that any issues concerning the real property must be addressed by a court located in the other state where the real property is located, not in Florida. This is not true. A distinction is drawn between a Florida probate court acting on the out-of-state real property itself, and the Florida probate court ordering a defendant to take action concerning the out-of-state real property. The latter is permitted, the former is not.
A Florida Probate Court Has No Jurisdiction Over Out-Of-State Real Property
The local action rule dictates that when real property is in controversy, “jurisdictional authority exists over the property only in the circuit where the land is situated.” Ruth v. Dep’t of Legal Affairs, 684 So. 2d 181, 185 (Fla. 1996). Said another way, when the real property is the primary dispute, and the parties are seeking to act directly on the property or title, the action is classified as in rem, and can proceed only in the circuit and state where the property is located. Therefore, if a petitioner is requesting partition of land, such a suit must occur in the county where the land is located.
In Brown v. Brown, the Florida appellate court reminds us that a Florida probate court does not have jurisdiction over real property in another state, and thus cannot order the partition and sale of real property located outside of Florida.
In this case, the Florida probate court directed the Florida personal representative to distribute a decedent’s Georgia real estate. An estate beneficiary appealed the order, arguing that the Florida probate court lacked jurisdiction to direct the personal representative to distribute the decedent’s Georgia real estate. The Florida appellate court agreed with the Florida estate beneficiary, positively citing cases stating:
Like lines in the sand, state boundaries determine a court’s jurisdiction over real property, and thus the court lacked in rem jurisdiction to order the partition and sale of foreign property.
In no event could the [circuit] court effect a partition of lands outside this state.
When a testator executes a will devising lands in two or more states, the courts in each state construe it as to the lands located therein as if devised by separate wills.
To partition property outside of Florida, the personal representative was required to open an ancillary action in Georgia.
It is basic law that a Florida court does not have jurisdiction over real property located outside of Florida. Although it may at first seem cumbersome for a personal representative to open up multiple cases in order to distribute a decedent’s estate, it is much more time consuming to go through the appellate process and have your order reversed on appeal.
A Florida Probate Court Can Order Return of Decedent’s Out-of State Real Property
A distinction is drawn between a Florida probate court acting upon out-of-state real property, and ordering someone to do something that involves out-of-state real property.
[T]he simple involvement of real property in an action does not render that action in rem and subject to the [local action rule]. The rule applies to suits that primarily seek the transfer of title to real property. It does not apply “with its full rigidity to suits in equity,” that may incidentally pass the title to real property in another jurisdiction.
Luskin v. Luskin, 616 So. 2d 559, 561(Fla. Dist. Ct. App. 4th Dist. 1993) (Internal citations omitted).
A court of equity (a Florida probate court) can order a person over which it has jurisdiction to convey out-of-state real property. Hirchert v. Hirchert, 65 So. 3d 548, 551 (Fla. 5th DCA 2011). Because the Florida court has in personam jurisdiction, the court can order a defendant to do something with respect to the land.
This law is important in the context of Florida probate and trust disputes requesting rescission of deeds on the grounds of lack of capacity and undue influence. These suits are grounded in equity.
Therefore, if a defendant in Florida is found to have unlawfully procured a deed transferring out-of-state real property away from a Florida decedent or out of a Florida trust, the Florida court can order the defendant to convey the real property back to its rightful owner. It is important to request relief requiring the defendant to take action, as opposed to relief directly over the land or title.