I have written articles in the past pertaining to Florida estate and tax planning, “Estate Planning for Snowbirds” and “Domicile: A State Tax Consideration for Snowbirds” but what happens when a someone dies owning property Florida? The simple answer, is that, as in New York, there likely will need to be an administration proceeding, to administer the estate. There are three types of administration proceedings in Florida, formal administration, ancillary administration and summary administration.
Formal Administration is necessary when the person who died, either was a Florida resident, or all of the property they owned at the time of their death was Florida property and a probate or administration proceeding has not been commenced in the state in which they resided upon their passing. Formal Administration is the most common probate proceeding in Florida.
Formal Administration begins with the filing of a Petition for Formal Administration in the county in which the decedent lived prior to their passing or the county in which the property that is the subject of the proceeding is located. The Petition for Formal Administration asks the probate court to admit the decedent’s Will to probate (if the decedent died leaving a Will) and to appoint the named personal representative (what New York calls an executor) in the decedent’s Will as the personal representative of the decedent’s estate. Next, the named personal representative must file an Oath of Personal Representative and Designation of Agent for Service of Process form, which designates a person to accept service of claims against the estate. The resident agent must reside in the county where the probate is filed. Typically, there will be someone close to the decedent who is willing to serve as resident agent. If not, it is possible to hire a corporate resident agent for a small fee. Additionally, the decedent’s original Will and a certified death certificate must be filed with the probate court.
Assuming that no one objects to the decedent’s Will or the appointment of the nominated personal representative, the probate court will issue an order admitting the Will to probate and appointing the personal representative. The court will then issue Letters of Administration to the personal representative, which they can use to fulfill their duties as personal representative, such as collecting the estate’s assets. The personal representative, once appointed will then open a bank account for the estate.
Next a notice must be published for two weeks in a newspaper in the county wherein proceedings are held. Creditors then have 90 days after publication to file claims. Notice must be sent to known creditors, who will then have 30 days to file claims.
The personal representative must then create an inventory of all of the estate assets. A copy of this inventory must be sent to all estate beneficiaries and filed with the probate court. The personal representative must then collect all of the estate assets. Cash is to be deposited in the estate’s bank account. Real estate can be sold and the proceeds of the sale will be deposited in the estate bank account. The personal representative must then pay all of the estates debts.
The final steps are to file a final accounting with the probate court, file a petition with the probate court to be discharged as personal representative, and file with the probate court the proposed order for distribution. All of these documents must also be sent to all estate beneficiaries. Estate beneficiaries then have 20 days to object. After the 20 day objection period has passed, the personal representative would then make all distributions to beneficiaries, as per the terms of the decedent’s Will and the personal representative will then have completed their duties and the formal administration will be complete.
Ancillary Administration is necessary when the person who died, owned property in Florida, but is a resident of another state, such as New York, and a probate or administration has been commenced in that other state. Ancillary administration is necessary because of the constitutional doctrine of sovereignty between states, meaning no court in one state may determine the ownership of real estate inside another state. As stated in my aforementioned article, “Estate Planning for Snowbirds”, an Ancillary Administration in Florida, can likely be avoided by transferring Florida property to a trust during your life.
The procedure for Ancillary Administration does not differ from the Formal Administration procedure. The same steps for a Formal Administration, outlined above, must be followed for an Ancillary Administration. In addition to filing the Will (not an original because that has been filed in the primary probate) and a death certificate, the nominated personal representative would also file certified copies of the following documents from the primary probate: 1. Letters Administration (or the equivalent); 2. Decree granting probate; 3. Petition for probate; and 4. The order admitting the decedent’s Will to probate.
Florida does offer two shorter forms of Ancillary Administration. If the property in Florida is worth less than $50,000.00 or if no ancillary administration has taken place, and, either, (i). two years have passed since the decedent’s death; or (ii.) the personal representative (executor) from the primary administration has been discharged. In the short forms of Ancillary Administration, the Ancillary Administration is treated in the same way as a Summary Administration, discussed below.
Summary Administration is a special type of administration available in the following circumstances: 1. When the value of the decedent’s estate subject to administration in Florida is less than $75,000.00; or 2. When the decedent has been dead for more than two years. To commence a Summary Administration a petition must be filed with the probate court where the decedent died or the property subject to the Summary Administration is located. In a Summary Administration, no personal representative is appointed, the court will issue an order transferring the estate property to the beneficiaries.
Do I Need a Florida Licensed Attorney?
Yes, pursuant to Florida Probate Rule 5.030(a), a personal representative (executor), must be represented by an attorney licensed to practice law in Florida. The one caveat is if the personal representative is the sole interested party in the proceeding, they would not need to be represented by an attorney. One example where this could occur, would be the decedent is only survived by their only child, who is set to inherit the decedent’s entire estate.
Does My Attorney Need to Be in Florida?
Although, Florida mandates that each estate be represented by an attorney, and that your attorney be licensed in Florida, your attorney does not have to be based in Florida. Florida has adopted e-filing, making it possible for you to hire a local attorney, admitted in Florida, to help you navigate the administration process. However, although you and your attorney may never need to step foot in Florida to completely administer an estate there, as stated above, you still must designate a resident agent to accept the service of claims against the estate.
If you are the personal representative (executor) or a beneficiary of an estate that contains Florida property, you may need to commence an administration in Florida. The Trusts and Estates department of Twomey, Latham, Shea, Kelley, Dubin & Quartararo has attorneys admitted in Florida who have guided clients through Formal Administrations, Ancillary Administrations and Summary Administrations in Florida, and are available at your convenience to answer your questions and to help you administer any Florida (or New York) estate.  Unlike New York, Florida does not distinguish between a testate estate proceeding (someone who died with a Will, called a probate in New York) and an intestate estate proceeding (someone who died without a Will, called an administration in New York). Both are administration proceedings in Florida.