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Florida Probate of Out-of-State Property

Posted on: August 7th, 2015
Florida estate planningAbout 1,000 people relocate to Florida daily, according to estimates from the Department of Motor Vehicles in Florida and local news reports. Despite relocation, many new residents of the Sunshine State continue to own property in their previous home state. If not planned for properly, owning assets in multiple states could trigger probate problems, as was illustrated by a recent Florida probate case.

Brown v. Brown involved a Florida decedent who owned real estate in Georgia. The executor received instructions from the Florida probate court to distribute the Georgia property to beneficiaries of the estate. A beneficiary disputed this order, claiming that the Florida courts should not have jurisdiction over distribution of out-of-state property. The court ruled in favor of the beneficiary and ordered the executor to file for probate in Georgia for administration of the respective property.  Without the use of trusts, life estates, and other estate planning tools related to the transfer of interests in real property, an executor generally is required to file probate in each state where the decedent’s real property is located.

People who maintain real estate and assets outside their resident state could leave behind an estate that results in complicated, costly, and lengthy probate requirements for surviving family members. Probate also leaves the estate vulnerable to creditor claims and disputes. If the decedent had significant debts or acquired large medical bills near their end of their life, these claims could compromise real estate and other assets that the decedent intended to leave to their loved ones. Additionally, since probate is not private, family members might contest provisions in a will.

To prevent problems in Florida probate, individuals can explore different ways of holding title to real property, as well as other estate planning tools such as life estates and trusts. Real estate can be held in trust and pass confidentially and immediately outside of probate, while at the same time remaining shielded from creditor claims. Florida residents could also elect the Homestead Exemption, which restricts creditor claims on their primary residence within the state. 

By Attorney Samantha Reichle

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