Am I Setting Myself Up to Need Ancillary Probate

Estate planning is of critical importance to all Floridians. While research continues to show us that many individuals mistakenly choose not to plan ahead, we often find that this comes from a lack of understanding. Often, potential clients share with us a number of reasons why planning remains unimportant. From “I don’t have enough assets to plan for” to “My wife and I are just too young to think about that right now”, we have heard them all.

We know and share with all of our clients, however, that estate planning is about so much more than simply ensuring the right person receives your hard-earned assets at the correct time. While this is an essential part of your Florida estate plan, it is just one component. More important is that you have planned forward to ensure that you have designated someone who has legal authority to care for you in a crisis and that you are not adding more complexity and issues to a time when your loved ones will be grieving.

A Florida estate plan can reach all of these goals and more. It can accomplish what you want for your family, your business, and your legacy, but only when you take the time to determine what you want and plan for it. Further, even though it is a Florida estate plan, it can help you protect your assets that are located outside of Florida.

Let us explain further. A common misconception is that your Florida estate plan can administer all of your assets, no matter where they are. This may be untrue based on your circumstance. When your Florida estate plan only contains a last will and testament, it will only have the power to manage your assets that you own in Florida through the Florida probate process.

This causes two issues for your surviving family members right away. First, by only having a last will and testament in Florida, you are ensuring that your estate may need to go through probate before beneficiaries inherit your assets. Probate can be time-consuming, expensive, and is a public process. This means that any interested party can read your final wishes, and potentially challenge them through the probate process.

Second, you are ensuring that any assets held outside of Florida may need to go through an ancillary probate. This could be a second, or even third or fourth, probate in the state where the property is held. For example, let’s say you have a timeshare in Colorado or a vacation home in North Carolina. If you have not worked with an experienced estate planning attorney who understands these issues and can help you plan for them in your estate planning documents, you may be at risk of needing not only a probate in Florida as your place of residence, but additional probates where your real property outside Florida resides.

As you can imagine, this can add to the time, expense, and stress that can arise during a “normal” probate process. Your personal representative will need to work with his or her probate attorney, as well as an ancillary probate attorney, to manage your estate. This assumes that your personal representative even has legal authority to act in the state your ancillary property is located. There are states, like Florida, that have strict rules on who qualifies to serve in this capacity.

This is just one of the reasons why we talk to our clients about the benefits of using trust agreements as a tool in their estate planning. We know this article may have questions that you have not addressed yet in your estate planning, and we encourage you to ask them. Do not hesitate to schedule a meeting with our experienced legal team now, or at any point in the future.

More