Budgeting Financial Planning Estate Planning How to Avoid Ancillary Probate in Florida 4 Options to Consider By Julie Garber Julie Garber Julie Garber is an estate planning and taxes expert with over 25 years of experience as a lawyer and trust officer. She is a vice president at BMO Harris Wealth management and a CFP. Julie has been quoted in The New York Times, the New York Post, Consumer Reports, Insurance News Net Magazine, and many other publications. learn about our editorial policies Updated on February 19, 2022 Reviewed by Erika Rasure Reviewed by Erika Rasure Erika Rasure, is the Founder of Crypto Goddess, the first learning community curated for women to learn how to invest their money—and themselves—in crypto, blockchain, and the future of finance and digital assets. She is a financial therapist and is globally-recognized as a leading personal finance and cryptocurrency subject matter expert and educator. learn about our financial review board Fact checked by Vikki Velasquez Fact checked by Vikki Velasquez Vikki Velasquez is a freelance copyeditor and researcher with a degree in Gender Studies. Previously, she conducted in-depth research on social and economic issues such as housing, education, wealth inequality, and the historical legacy of Richmond VA as well as their intersectionality while working for a community leadership nonprofit. Vikki leverages her nonprofit experience to enhance the quality and accuracy of Dotdash's content. learn about our editorial policies Share Tweet Pin Email Photo: Joe Raedle / Getty Images Ancillary probate is required in Florida when a nonresident dies owning a home, condominium, commercial building, vacant lot, or other types of real estate located in Florida and the property is titled in the nonresident's sole name. Ancillary probate in any state will add additional expenses to the overall costs related to settling an estate. In Florida in particular ancillary probate can get quite expensive for two reasons: Florida Probate Rule 5.030 requires that "Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida"; andSection 733.6171 of the Florida Probate Code lists the total amount of fees that attorneys can reasonably charge for probating an estate, including an ancillary estate. Fees vary depending on the value of the estate. For instance, no more than 3% could be charged for an estate valued between $100,000 and $999,999. As an example, a vacation home valued at $300,000 could result in probate fees of $9,000. How to Avoid Ancillary Probate in Florida So how can out of state residents or foreigners who own real estate located in Florida avoid ancillary probate in Florida? There are really only four options, putting the property in joint ownership, listing it as a business entity owner, using an enhanced life estate deed, and placing the property in a trust. Joint Ownership The Florida real estate can be titled in joint names with one or more other owners with rights of survivorship. If you are married, then Florida recognizes a special type of joint ownership with rights of survivorship called "tenancy by the entirety." If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded, otherwise, you may inadvertently create a "tenancy in common" instead of a joint tenancy with rights of survivorship. Enhanced Life Estate Deed Florida has not passed a "transfer on death deed" or "beneficiary deed" law like a handful of other states. However, Florida common law does recognize a special type of life estate deed called an "Enhanced Life Estate Deed," also known as a "Lady Bird Deed." With this special type of life estate deed, the owner of the real estate, referred to in legalese as the "life tenant," reserves the right to do whatever he or she wants with the real estate while alive, but after the death of the life tenant the real estate will pass outside of probate to the "beneficiaries" named in the deed, referred to in legalese as the "remaindermen." For example, the life tenant can mortgage the real estate, or even sell it, without the permission of the remaindermen. But if the life tenant still owns the real estate when he or she dies, then the remaindermen will inherit it outside of the probate process. If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded, otherwise, you may inadvertently create a "regular" life estate instead of an "enhanced" life estate. Ownership in a Business Entity The owner can transfer commercial or rental real estate located in Florida into a business entity such as a limited liability company or a corporation, which will convert the property from real estate into personal property. Note that while this may avoid ancillary probate in Florida, it may not prevent domiciliary probate in the owner's home state of residence. If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded. Trust Ownership The owner can title the Florida real estate in the name of a trust, such as a revocable living trust. If you are considering this option, please do not try to write your own deed. You need to consult with a Florida attorney to ensure that the deed is properly drafted and recorded. What Should You Do? Which one of these options will work the best for you? This will depend on many factors, including your use of the property (secondary home vs. residential rental property vs. commercial property); your creditor situation and that of your intended beneficiaries; your overall estate planning and asset protection goals; and your budget. Thus, you will need to sit down with your local estate planning attorney as well as a Florida estate planning attorney to discuss the pros and cons of each option and then decide which one makes the most sense in your situation. Was this page helpful? Thanks for your feedback! Tell us why! Other Submit Sources The Balance uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy. The Florida Legislature. "Chapter 734 Probate Code: Foreign Personal Representatives; Ancillary Administration." Florida Supreme Court. "Rule 5.030. Attorneys," Page 1. The Florida Senate. "Title XLII Estates and Trusts, Chapter 733 Probate Code: Administration of Estates, Section 6171 Compensation Attorney for the Personal Representative." The Florida Senate. “Title XLII Estates and Trusts: 732.2035 Property Entering Into Elective Estate.” The Florida Senate. "Title XL, Real and Personal Property: 689.15 Estates by Survivorship." The Florida Senate. “Title XL Real and Personal Property: 711.502 Registration in Beneficiary Form; Sole or Joint Tenancy Ownership.” The Florida Senate. "Chapter 711: Florida Uniform Transfer-On-Death Security Registration Act." The American College of Trust and Estate Counsel. "Transfer on Death Deeds Survey," Page 7. Stephanie Emrick. "Transfer on Death Deeds: It Is Time to Establish the Rules of the Game," Pages 12-15. Florida Law Review. Sackrin & Tolchinsky, Practicing Attorneys. "Florida Ancillary Probate."