Owning property outside Florida could means a second probate

Florida Probate Court Has No Jurisdiction Over Out-Of-State Real Property

Written by Anya Van Veen • July 24th, 2015
• Probate Litigation,  Real Estate Litigation,  Estate Planning,  Probate Administration,
It is not uncommon for a resident of Florida to own real property in another state.  In Brown v. Brown, the Florida appellate court reminds us that a Florida probate court does not have jurisdiction over real property in another state, and thus cannot order the partition and sale of real property located outside of Florida.
In this case, the Florida probate court directed the Florida personal representative to distribute a decedent’s Georgia real estate.  An estate beneficiary appealed the order, arguing that the Florida probate court lacked jurisdiction to direct the personal representative to distribute the decedent’s Georgia real estate.  The Florida appellate court agreed with the Florida estate beneficiary, positively citing cases stating:

Like lines in the sand, state boundaries determine a court’s jurisdiction over real property, and thus the court lacked in rem jurisdiction to order the partition and sale of foreign property.

***

In no event could the [circuit] court effect a partition of lands outside this state.

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When a testator executes a will devising lands in two or more states, the courts in each state construe it as to the lands located therein as if devised by separate wills.

To partition property outside of Florida, the personal representative was required to open an ancillary action in Georgia.
It is basic law that a Florida court does not have jurisdiction over real property located outside of Florida.  Although it may at first seem cumbersome for a personal representative to open up multiple cases in order to distribute a decedent’s estate, it is much more time consuming to go through the appellate process and have your order reversed on appeal.
Anya Van Veen is a Florida probate, trust, and appellate attorney.

- See more at: http://www.clarkskatoff.com/news-resources/blog/florida-probate-court-has-no-jurisdiction-over-out-of-state-real-property/#sthash.YQ2q0k2o.dp

Many of my clients have vacation homes out of state, in addition to owning primary residences here in Florida. When setting up your estate plan, it is very important to discuss your out-of-state home. If you do not effectively plan to avoid probate, your estate will be required to go through two probates - one in Florida, and an "ancillary" probate in the state in which your other property is located. Obviously, your estate will incur the costs and hassles of both.

A case here in Palm Beach County is instructive. The Florida appeals court in the case of Robert Paul Brown Jr. v. Michael Scott Brown ruled that the circuit court did not have jurisdiction over a decedent's Georgia property. The decision states: To partition property outside this state, the personal representative needs to open up an ancillary action in Georgia. You can read the Appeals Court decision here. 

So, what can you do to avoid ancillary probate? One possibility is making one or more of your adult children or another heir a co-owner of the property, with rights of survivorship. However, there are two potential problems with this strategy. First, you make the property vulnerable to your joint tenant's creditors. Second, if you apply for Medicaid for long-term care within five years of adding your joint tenant to the title, the value of the property will be considered an uncompensated gift and will result in a penalty period during which time you cannot receive benefits, even if you are otherwise eligible.

A better approach for most people is to create a revocable trust, also known as a living trust. If you put your property in a properly drafted trust, it will pass to your trust beneficiaries without the need for an ancillary probate.  

Feel free to contact my office to inquire about setting up your living trust and avoiding probate, including avoiding ancillary probate on your second home.

It is not uncommon for a resident of Florida to own real property in another state.  In Brown v. Brown, the Florida appellate court reminds us that a Florida probate court does not have jurisdiction over real property in another state, and thus cannot order the partition and sale of real property located outside of Florida.
In this case, the Florida probate court directed the Florida personal representative to distribute a decedent’s Georgia real estate.  An estate beneficiary appealed the order, arguing that the Florida probate court lacked jurisdiction to direct the personal representative to distribute the decedent’s Georgia real estate.  The Florida appellate court agreed with the Florida estate beneficiary, positively citing cases stating:
- See more at: http://www.clarkskatoff.com/news-resources/blog/florida-probate-court-has-no-jurisdiction-over-out-of-state-real-property/#sthash.YQ2q0k2o.dpuf

Florida Probate Court Has No Jurisdiction Over Out-Of-State Real Property

Written by Anya Van Veen • July 24th, 2015
• Probate Litigation,  Real Estate Litigation,  Estate Planning,  Probate Administration,
It is not uncommon for a resident of Florida to own real property in another state.  In Brown v. Brown, the Florida appellate court reminds us that a Florida probate court does not have jurisdiction over real property in another state, and thus cannot order the partition and sale of real property located outside of Florida.
In this case, the Florida probate court directed the Florida personal representative to distribute a decedent’s Georgia real estate.  An estate beneficiary appealed the order, arguing that the Florida probate court lacked jurisdiction to direct the personal representative to distribute the decedent’s Georgia real estate.  The Florida appellate court agreed with the Florida estate beneficiary, positively citing cases stating:

Like lines in the sand, state boundaries determine a court’s jurisdiction over real property, and thus the court lacked in rem jurisdiction to order the partition and sale of foreign property.

***

In no event could the [circuit] court effect a partition of lands outside this state.

***

When a testator executes a will devising lands in two or more states, the courts in each state construe it as to the lands located therein as if devised by separate wills.

To partition property outside of Florida, the personal representative was required to open an ancillary action in Georgia.
It is basic law that a Florida court does not have jurisdiction over real property located outside of Florida.  Although it may at first seem cumbersome for a personal representative to open up multiple cases in order to distribute a decedent’s estate, it is much more time consuming to go through the appellate process and have your order reversed on appeal.
Anya Van Veen is a Florida probate, trust, and appellate attorney.

- See more at: http://www.clarkskatoff.com/news-resources/blog/florida-probate-court-has-no-jurisdiction-over-out-of-state-real-property/#sthash.YQ2q0k2o.dpuf