What Is Ancillary Administration, and When Does a Part-Time Resident's Family Need It?

Ancillary administration is a Florida probate proceeding to administer a non-Florida domiciliary's property that is subject to administration in Florida. It often accompanies probate in the decedent's home state, but the Florida proceeding concerns only the Florida property.

When ancillary administration may be needed

Florida law provides for ancillary administration when a nonresident dies leaving assets in Florida, credits due from Florida residents, or liens on Florida property. Fla. Stat. § 734.102(1). A common example is a house or condominium titled solely in the decedent's name. A Florida proceeding or statutory alternative is often needed to establish or clear title for a sale; the home-state court cannot directly administer Florida real estate.

A separate Florida probate proceeding is generally unnecessary for property that passes automatically or by a nonprobate transfer, such as real estate held as tenants by the entireties with a surviving spouse or as joint tenants with right of survivorship, property conveyed by a Lady Bird deed, property properly titled in a revocable trust, or an account with a beneficiary designation. See How to Avoid Probate in Florida.

Resident or nonresident?

Whether Florida is the main probate jurisdiction or an ancillary one depends on the decedent's domicile at death—the person's legal home, assessed from the person's residence, intent, and conduct. Evidence may include where the person claimed a homestead exemption, voted, held a driver's license, filed tax returns, and spent time. No single factor controls. A seasonal resident who retained a domicile in another state generally needs an ancillary proceeding for Florida property subject to administration. A person who changed domicile to Florida generally has a Florida administration, with ancillary proceedings in another state if property remains there.

Who may serve as ancillary personal representative

For a testate estate, section 734.102(1) provides this order, subject to Florida's qualification rules:

• A personal representative specifically designated in the will to administer the Florida property;
• If that person is not qualified or was not designated, the domiciliary personal representative;
• If the domiciliary personal representative is not qualified, an alternate or successor named in the will who is qualified; or
• If none of the above can serve, a personal representative selected by those entitled to a majority interest in the Florida property.

If the decedent died intestate and the domiciliary personal representative is not qualified in Florida, the appointment follows the Florida Probate Code's intestacy preferences. A nonresident must meet the relationship requirements in section 733.304 and must not be otherwise disqualified. Fla. Stat. §§ 733.303–.304, 734.102(1).

How the proceeding works

The petition is filed in the Florida county where the property is located. For a testate estate, it generally includes authenticated portions of the domiciliary record showing the will, petition for probate, order admitting the will, and the personal representative's authority. For an intestate estate, the required record differs. If someone other than the domiciliary personal representative seeks appointment, the petition must state the grounds. Fla. Prob. R. 5.470(a).

The Florida court separately decides whether the will may be admitted here. Florida generally recognizes a nonresident's will executed elsewhere if it was valid under the law where it was executed, but the statute excludes holographic and nuncupative wills from that rule. A handwritten will executed with Florida's required formalities is not considered holographic under the statute. Fla. Stat. §§ 732.502(1)–(2), 734.102(3).

The ancillary personal representative generally gives bond as in other administrations, and the estate follows Florida's creditor-notice procedures unless claims are otherwise barred. After expenses and claims are addressed, the court may order the remaining Florida property transferred to the domiciliary personal representative or distributed to the beneficiaries. The personal representative generally must have a Florida attorney, subject to the exceptions for a sole interested person or a Florida Bar member representing themself. Fla. Stat. § 734.102(4)–(6); Fla. Prob. R. 5.030.

Shorter routes for smaller or older estates

• Short-form ancillary administration. If the nonresident died with a will and the gross value of Florida property subject to administration was no more than $50,000 at death, the foreign personal representative may use the short-form procedure within two years after death. The foreign personal representative files authenticated records and publishes notice to creditors. If a claim is filed, the court appoints an ancillary personal representative to handle it. Fla. Stat. § 734.1025; Fla. Prob. R. 5.475.
• Summary administration. This is available for a resident's or nonresident's estate if the Florida estate subject to administration, less exempt property, does not exceed $150,000, or the decedent has been dead for more than two years. In a testate estate, the will must not direct formal administration. Fla. Stat. § 735.201(1)–(2). See Does My Parent's Estate Qualify for Summary Administration?
• Admitting the foreign will to record. If no Florida administration has been opened, an authenticated copy of a nonresident's will devising Florida real estate may be admitted to record after two years from death or after the domiciliary personal representative has been discharged. The will must have been admitted to probate in another jurisdiction and must satisfy Chapter 732. The petition generally includes authenticated copies of the will, the petition for probate, and the order admitting the will. Once admitted to record, the will is effective to pass title as if it had been admitted to probate in Florida. Fla. Stat. § 734.104.

The best route depends on the Florida assets subject to administration, creditor concerns, the will's terms, and how quickly the family needs to sell or transfer the property.

At Clarke Law, P.A., I handle ancillary administrations for out-of-state families with property in Broward, Miami-Dade, and Palm Beach counties, working with the family's home-state attorney when there is one. Your first consultation is free.