Probating Florida Vacation Home

People throughout the country look to Florida as their second home, making it among the nation’s leaders for vacation homes. Without proper planning, often, these vacation homes need to be probated. Frequently, clients assume that their loved one’s vacation home is probated in the state where their loved one lived. However, a probate proceeding needs to be done in Florida, not the deceased’s foreign state of residency.

In transferring real estate from the dead to the living, a court must have jurisdiction. That is, the court must have the power to make legal decisions with respect to real estate. The jurisdiction over real estate lies within the state and county where the property is located, not the state and county where the deceased resided. For example, if John resides in Michigan and has a vacation home in Florida, Michigan courts lack jurisdiction over the Florida vacation home and must therefore be probated in Florida, in the county in which the home is located. This type of probate is referred to as ancillary administration. Given the number of vacation homes in Florida, ancillary administrations are quite common, and typically proceed as other probates. But there are differences.

For example, what if there has already been or is pending, a probate proceeding in the deceased’s state of residency? To proceed with the Florida probate, Florida Probate Rule 5.470 requires authenticated copies of certain documents prepared in the out-of-state probate proceedings. For example, if the deceased died with a last will and testament, Florida Probate Rule 5.470 (a) requires an authenticated copy of so much of the out-of-state probate proceedings, including the last will and testament, the petition for probate, the order admitting the will to probate, and the authority of the executor or personal representative (or executor). However, if the deceased died without a last will and testament, Florida Probate Rule 5.470 (b) requires an authenticated copy of so much of the out-of-state probate proceedings as will show the petition for administration, and authority of the executor or personal representative to act. For a fee, which varies from state-to-state, these authenticated copies can be easily obtained from the county probate court in which the in-state probate is being administered.

But what happens if a probate proceeding was not required in the deceased’s state of residency? The Florida probate would proceed as usual, so long as the Florida probate petition for admission states that no probate is pending or was conducted.

If you have a loved one who died owning a vacation home in Florida, but lived in another state, you should contact an experienced attorney to guide you through the process. In choosing a lawyer, be sure to ask them how many ancillary administrations they have handled. We have successfully probated many ancillary administrations throughout the state of Florida and would be happy to share our experience with you.