Owning property in Florida while living in another state feels like a dream for many families. That is, until the estate planning side of things comes into the picture. When an out-of-state property owner passes away, Florida may require a separate legal process called ancillary probate before their property can transfer to heirs.
Many families find out about this requirement too late, after the process has already begun eating into the estate’s time and money. The good news is that a living trust may offer a way to sidestep this process entirely.
Why Florida property triggers ancillary probate
Ancillary probate catches many families off guard. This is true for those who assumed an out-of-state will would be enough to transfer Florida property, so keep these points in mind:
- How ancillary probate works: When a non-Florida resident dies owning property in the state, Florida courts may require a separate probate proceeding to address that property before it can pass to heirs.
- What types of property trigger it: Real estate and certain other assets titled solely in the deceased’s name typically require ancillary probate in Florida.
- The time and cost involved: Ancillary probate can add months or even years to the estate settlement process and may carry significant court costs and attorney fees.
- How it affects out-of-state heirs: Heirs living outside Florida may find themselves navigating an unfamiliar court system while simultaneously dealing with the primary probate in their home state.
- Why a standard will does not help: A will must pass through probate before it takes effect, meaning it offers no protection against triggering ancillary probate in Florida.
Understanding why ancillary probate happens makes it easier to appreciate why a living trust could be such a valuable planning tool.
How a living trust could help you bypass ancillary probate in Florida
Placing Florida property into a living trust before death may allow it to transfer directly to beneficiaries without going through the courts. Here are some elements to consider:
- A living trust holds assets on behalf of the trust’s beneficiaries, allowing those assets to pass outside of probate entirely
- With a revocable living trust, you keep full control of your property during your lifetime and can make changes to the trust whenever your situation or wishes change
- An irrevocable trust offers stronger protection but requires you to give up direct control of the property once it enters the trust
- For the trust to work properly the Florida property must undergo retitling in the trust’s name — simply creating the trust without transferring the deed is not enough
Getting these details right during the planning stage is what makes the difference between a smooth transfer and a lengthy court process.
Planning ahead with the right legal tools could spare your family from the added stress and expense of ancillary probate in Florida. Exploring your probate options now while there is still time to act could be one of the most valuable gifts you leave behind.