When someone dies and needs a probate, that probate is usually conducted
in the state in which they are a resident, which is their home state (sometimes
a person may appear to be a resident of more than one state, but the home
state is the state in which they have their driver’s license or
are registered to vote etc.). The probate in the home state can handle
all the assets that need to go through probate except for real estate
that is located in a state other than the home state. A probate that is
held in the decedent’s home state is called the domiciliary probate
and the probate that is held in a state other than the home state is called
the ancillary probate.
Probate for real estate has to be conducted in the state in which the real
estate is located. This is why the families of non-Florida residents are
sometimes surprised to find out that they need a probate proceeding in
Florida. So, if you have a family member who passes away owning real estate
located in Florida (that was not owned in a probate avoidance manner such
as joint title or a trust), that real estate cannot be sold by the beneficiary
until it goes through the probate process.
We receive many panicked phone calls from out of state beneficiaries who
are ready to sell real estate located in Florida who don’t realize
until they are ready to sell the real estate to an actual buyer that a
probate is needed. This need for a probate will most likely delay the
sale of the property. Sometimes the sale can still be salvaged if the
buyer has the luxury of time to be patient while the probate process gets
started, but sometimes the sale is completely lost and the beneficiary
has to start all over again to find a new buyer.
So, if you inherit real estate that is located in Florida that you intend
to sell, you may want to make one of the first items on your “to
do” list finding out what the Florida probate requirements may be
for that real estate.