For out-of-state property owners and dual-state residents, the biggest estate planning risk in Florida is a second probate. When a non-resident dies owning a Miami home or condo in their individual name, the property typically must pass through a Florida ancillary administration, separate from the estate proceeding in the home state. With the right plan, your family can avoid that entirely.
What Ancillary Administration Is
Ancillary administration is a Florida probate opened to transfer Florida property owned by someone whose primary estate is administered in another state. It runs under the Florida Probate Code (Chapters 731-735) and generally requires Florida counsel. For a family already settling an estate up north, it means added cost, delay, and dealing with a court hundreds or thousands of miles away. Avoiding it is one of the main reasons dual-state owners plan ahead.
Summary vs. Formal Administration
Florida offers two main probate paths. Summary administration under Chapter 735 is available when the value of the estate subject to probate (excluding exempt property like homestead) does not exceed $75,000, or when the decedent has been dead more than two years. It is faster and less expensive but does not appoint a personal representative. Formal administration is the full process, used for larger or more complex estates, and it does appoint a personal representative to manage the estate. Which path applies depends on the estate’s value and timing.
Tools to Avoid Probate Altogether
The best outcome for most dual-state owners is to avoid probate for the Miami property in the first place. We use several Florida tools:
- Revocable living trust (Chapter 736): hold the property in trust so it passes outside probate in every state.
- Lady Bird deed: an enhanced life estate deed that transfers the property at death automatically while you keep control.
- Joint ownership with survivorship: appropriate in some cases, though it carries its own trade-offs and risks.
We choose the approach that fits your holdings, your family, and your home-state plan, rather than applying a single template.
Homestead and the Elective Share
Two Florida rules frequently affect these plans. Homestead property receives constitutional creditor protection and is treated specially in administration, but only for a true Florida residence. And under the elective share statute, §732.2065, a surviving spouse is entitled to 30 percent of the elective estate, which includes many non-probate assets such as certain trust property. A plan that ignores the elective share can be undone, so we account for it when structuring trusts and deeds for married clients.
Coordinating Two States
Probate avoidance for dual-state owners is not just a Florida question. We coordinate with your home-state advisors so your Florida documents and your primary-state plan work together, ensuring the Miami property is handled here while the rest of your estate is handled where you are domiciled.
Consult a Florida Attorney
This page provides general information about Florida law and is not legal advice. Probate avoidance strategies depend heavily on your assets, residency, and family situation. Please consult a licensed Florida attorney before relying on any approach described here.
