Navigating the complexities of estate administration can be daunting. This is especially true when the business assets of someone who passed are in multiple states. When dealing with a probate case for an out-of-state deceased decedent? who owned property in Florida, you will likely need to be part of a Florida ancillary probate to distribute the Florida property.
BrewerLong’s top-rated probate attorneys in Orlando have extensive experience with business matters subject to Florida probate laws. We can guide you through the process and protect your business interests.
Probate
When someone passes away, their property usually goes through the probate process. During probate, the court reviews the deceased person’s (decedent’s) estate and supervises the paying of the decedent’s debts and distribution of their remaining property according to a will or state law.
When there is business property of a non-resident decedent in Florida, there can be additional legal steps that parties must follow to assert their rights. We can help you comply with those laws and ensure each of the decedent’s beneficiaries or creditors receive the assets they are owed.
The Florida Ancillary Probate Process
When you have an out-of-state decedent and property subject to probate, Florida ancillary probate comes into play. The process handles assets located in Florida when the primary probate is elsewhere. You can think of it as a localized procedure that ensures the legal transfer of Florida property according to state law.
Selecting a Personal Representative
Ancillary probate starts with selecting a personal representative. The representative is responsible for paying creditors and distributing the property in Florida and may be selected by choosing the following:
- The specific Florida representative named in the decedent’s will,
- The representative from the decedent’s home state named in the decedent’s will,
- The representative of those entitled to a majority of the decedent’s assets, or
- A surviving spouse or heir or someone the heirs with a majority interest choose if the decedent dies without a will.
According to Florida law, any personal representative must be qualified, meaning that the individual must be an adult and a resident of Florida.
Administering the Estate
Once the decedent’s estate has a personal representative in Florida, that representative can apply for letters ancillary. If the court grants the letters ancillary, the representative can start administering the decedent’s Florida estate.
The will
If the decedent had a will that is valid under Florida law, all Florida property addressed in the will is distributed according to its terms. In general, a will is valid in Florida law under the following conditions:
- The decedent was an adult when they wrote the will,
- The decedent signed the will in the presence of two witnesses, and
- The witnesses signed the will.
If the decedent makes amendments (codicils) to their will, the codicils must be executed in the same way.
Intestate succession
If the decedent dies without a will or their will is invalid under Florida law, their Florida property passes under the state’s intestate succession laws. Under these laws, the decedent’s Florida property goes to their surviving spouse or other surviving heirs.
Notice to creditors
A personal representative cannot distribute assets until they pay the estate’s bills in Florida. Florida law requires the personal representative to notify creditors of the probate proceedings and allow them to file claims against the estate. A creditor typically has up to 90 days to file their claim following the sending of notice.
The ancillary probate is closed once all Florida claims and taxes are paid, and Florida assets are distributed.
What About Business Assets?
Many types of business property may get tied up in the probate process, including:
- Real estate,
- Equipment,
- Intellectual property,
- Business proceeds, and
- Business shares.
Florida ancillary probate applies only to the Florida property that belonged to the decedent when they passed. So the first big question to ask when an out-of-state decedent leaves business property in Florida is, Does the property belong to the business or the decedent? The second question is, Did the decedent make enforceable arrangements for business property that belonged to them?
Look at the Business Documents
One of the best ways to determine whether business property in Florida belongs to a decedent is to look at the business’s documents. Business formation documents or contracts that clearly state a particular piece of property was acquired in the business’s name will likely establish that the property does not belong to the decedent and is not part of their estate.
If a probate court determines that business property (or a management right) belongs specifically to the decedent, it may distribute the property and make business determinations according to the decedent’s succession agreement. Typically, a succession agreement is valid and binding on a probate court if the agreement has the following characteristics:
- The agreement is in writing,
- It was signed in front of two attesting witnesses, and
- It is valid in the state where it was executed.
The details of business agreements and arrangements can quickly turn into tricky matters in Florida probate court.
Dealing with probate and business matters across state lines adds layers of complexity you should not have to shoulder by yourself. However, you do not have to worry about making sense of complex business issues when you have BrewerLong by your side.
Our skilled and award-winning attorneys can ease your burden. We have decades of business experience and can guide you through Florida probate matters involving business interests. Contact us by phone or online today to schedule a consultation.
Resources:
- Who may be appointed personal representative, Fla.Stat. §733.302 (2024), link.
- Spouse’s share of intestate estate, Fla.Stat. §733.102 (2024), link.
- Share of other heirs, Fla.Stat. §733.103 (2024), link.
- Limitations on presentation of claims, Fla.Stat. §733.702 (2024), link.
- When property is partnership property, Fla.Stat. §620.8204 (2024), link.
- Restriction on transfer of shares and other securities, Fla.Stat. §607.0627 (2024), link.
- Limited liability company property, Fla.Stat. §605.0110 (2024), link.
- Agreements concerning succession, Fla.Stat. §733.701 (2024), link.
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