Many clients may wish to avoid an ancillary probate proceeding but it is often necessary to transfer property and assets to the proper heirs. An ancillary probate in Florida is only required if the estate meets certain conditions and criteria. An ancillary probate proceeding is most likely required in Florida if the decedent both:
Was not a Florida resident of Florida at death.
Died owning Florida property.
Who is considered a non-resident for Ancillary Probate purposes?
Location, Location, Location! To qualify for a Florida ancillary probate, the decedent must not have been a resident of Florida at the time of his or her death and this is determined by examining where the decendent typically resided. There are a number of statutes and various case law that aids attorneys and courts to make the proper determination as to the decedent’s residency but the general rule is that a Florida court will resolve this issue based on where the decendent typically resided, maintained, and indefinitely intended to maintain as the person’s principle and permanent home (§ 222.17, Fla. Stat.). If it is established that the decendent did not reside in a Florida county, then an ancillary probate may be necessary if the he or she had assets locate in Florida.
There is an exception to this rule regarding a Florida court determining where the decendent was a resident. The most current Florida case law suggests that when another state's court makes its own prior determination as to the domicile of the decendent, the Florida court should then give full faith and credit to the prior out of state court's determination essentially meaning that the ruling as to the decendent's residency by the out-of-state court will be honored by the Florida court regardless of Florida statute or case law.