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When is an Ancillary Probate required in Florida?

When a non-resident of Florida, whether a U.S. Citizen or foreigner, dies leaving assets in Florida such as property or a timeshare, an ancillary probate proceeding in Florida may be require to dispose and transfer the Florida property to the proper heirs.

The Florida ancillary probate proceeding is subject to Florida law and is generally brought after or during the probate estate proceeding taking place in the decedent’s state of residence at time of his or her death. However, if two years have passed since the decedent’s death or the decedent’s Florida estate is relatively small, there may be alternative procedures available to administer the decedent’s Florida estate.

Furthermore, Florida employs what is referred to as the doctrine of lex loci rei sitae which essential means the ‘law of the place where the property is situated’ when disposing of Florida real property under the decedent’s will. Thus, Florida courts apply Florida law to construe a will that disposes of Florida real property even though the same will may be interpreted differently by courts in other states.

Essentially, a nonresident of Florida owning Florida real estate solely in their name upon their death must open an ancillary probate proceeding in Florida to dispose of the Florida real property.


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