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Understanding Ancillary Probate: What Happens When You Own Property in Different States

For many people, Florida is a second home. They may only live here part of the year while still maintaining owning a home or real property in another state. But how does this work when it comes to your will? That is, do you need to have separate wills for your Florida and non-Florida real properties?

You do not need separate wills. But you do need to be aware of the possible need for additional probate proceedings following your death. This is because when it comes to real property, the state where your real property is located has jurisdiction over the property in any probate proceedings.

So, let’s say Jessica owns a home in Florida and another home in Pennsylvania. She considers herself a Florida resident and spends most of her time in this state. When Jessica passes away, her personal representative (executor) will open a probate proceeding in Florida. But the personal representative must also open a secondary–or ancillary–probate in Pennsylvania.

The ancillary probate is necessary only to dispose of the Pennsylvania property under the terms of Jessica’s will. The Pennsylvania court has no jurisdiction over any of Jessica’s Florida property, which includes non-tangible assets such as her bank accounts. However, any of Jessica’s creditors who happen to be located in Pennsylvania may file a claim against either the Florida or Pennsylvania probate estates.

Can Ancillary Probate Be Avoided?

There are a number of options that can help keep your real property out of probate entirely. These options include:

  • Living Trust. With a trust, you transfer title to your real property to a trustee, who can be you during your lifetime. Upon your death, a successor trustee named in the trust document assumes control of the property and distributes it according to your wishes. Since the property is owned by the trust, it is not subject to probate.
  • Joint Ownership. When two people own a property jointly with “survivorship” rights, the surviving co-owner becomes the sole owner upon the joint owner’s death. So, if you and your spouse co-own real property, upon the first spouse’s death, the surviving spouse simply becomes the sole owner; the property does not pass through the first spouse’s probate estate.
  • Lady Bird Deed. You can also bypass probate by creating what is known as an “enhanced life estate” or “Lady Bird” deed. With this type of deed, you name a “life tenant” (typically yourself) who is entitled to reside on the property until they die.  When the life tenant dies, ownership passes to the beneficiary or “remainderman,” who effectively inherits without the need for probate.

Contact Us Today

If you own real property outside of the state of Florida, it is important that you take steps to address it in your estate plan.   The experienced Florida estate planning and elder law attorneys at Morgan Law Center can provide you with professional guidance and advice. Contact us today at (386) 755-1977 to schedule a consultation.

 

How to Avoid Having to Obtain a Guardianship for an Ailing Parent

Do you have an elderly parent you are concerned about, especially if they’re beginning to show signs of mental impairment or difficulty handling their personal affairs? If a parent becomes mentally incapacitated, you may have to obtain a guardianship in order to manage his or her finances or medical care.  Guardianships are extremely costly and time-consuming, and necessitate that the court supervise all actions taken on behalf of the ailing parent.  At Morgan Law Center, we recommend that guardianship proceedings be avoided if at all possible.  How?  Let’s find out.

A comprehensive estate plan is the best way to ensure that your parent’s wishes are followed when or if they become incapacitated.  In addition to creating a will or trust to direct the distribution of assets at your parent’s death, a good estate plan should always include a financial power of attorney, and advance health care directives in which the parent designates a trusted person to make health care decisions in the event the parent can’t do so for him or herself.

  • Financial Power of Attorney:  This document, known in Florida as a General Durable Power of Attorney, grants a trusted person, known as the attorney-in-fact, the power and authority to pay bills, and manage property transactions, investments, and bank accounts.  Make sure your parent’s power of attorney also grants the attorney-in-fact the power to establish a Medicaid-qualification trust, as one may be essential to your parent’s ability to qualify for long-term care benefits that will pay for nursing home care.    
  • Advance Health Care Directives:  Two documents are important here:  (1) Designation of Health Care Surrogate, and (2) Living Will.   The Designation of Health Care Surrogate will enable your parent to name the person he or she wants to make health care decisions if the parent can’t do so for him or herself, and will also waive the HIPAA restrictions so that the designated person can access the parent’s medical information.  The Living Will sets forth the parent’s wishes with regard to end-of-life medical treatment.  

In addition to the above, if your parent creates a living trust as part of his or her estate plan, the trust should designate an “incapacity trustee” to manage the assets held in the trust during incapacity, as well as instructions on how the assets are to be used and managed.  

Your parent must be mentally competent to create an estate plan, so the sooner the plan is in place, the better.  Once your parent becomes incapacitated, it will be too late. 

Do you have an aging parent that you’re concerned about? If your parents haven’t created a comprehensive estate plan, now is a great time to bring the topic to their attention, before it’s too late. Fortunately, the skilled legal team at Morgan Law Center in Lake City, Florida can help. Give our office a call today. We have a proven track record of helping families navigate the estate planning process. Call us at 386-755-1977 to schedule a consultation.

Common Reasons Why People Put Off Estate Planning

Estate planning involves making decisions on who will inherit your estate upon your death. It also ensures that you and your assets are taken care of in the way you wish if you become disabled, and that your loved ones are cared for after your passing. 

 

Everyone has an estate. Estates can be modest or quite large. No matter the size, everyone has one and should have a plan on how that estate will be distributed. Unfortunately, not everyone has an estate plan or even knows what an estate plan is. Many people tend to put off estate planning because they’re too busy or think they are too young to worry about such things. 

 

The fact of the matter is tomorrow isn’t promised. Death isn’t a matter of if. It’s a matter of when. We’re all going to die and we can’t take our belongings with us. Estate planning allows you to decide what happens with your belongings. Without a plan, the state will determine who gets your assets.

 

What are some of the most common reasons why people postpone estate planning?

 

You don’t own much. Even if you don’t have many belongings, you may have children. Who will care for them if you die unexpectedly? Without a comprehensive estate plan in place, your children may go into the custody of a person you would not have chosen. Additionally, as mentioned earlier, everyone has an estate, no matter the size. Even if you only have a handful of belongings, wouldn’t you feel better if those belongings passed to your loved ones or people of your choosing? An estate plan will make this so.

 

You trust your doctor to make medical decisions about your health. What happens if you’re incapacitated and unable to make your own medical decisions? Are you okay being kept alive for months or years on medical machines, or would you rather have someone you trust stop the medical equipment when and if that time comes? When you have an estate plan in place, you can decide who will be responsible for making medical decisions on your behalf.

 

Your kids can just deal with everything after your passing. While this is an option, it could kickstart a host of problems and potential conflicts. Regardless of the size of your estate, leaving your children with no legal direction on how to divvy up your belongings may be time-consuming, costly, and result in lifelong conflicts that could have been avoided. 

 

You don’t have children or family to leave your estate to. As stated earlier, everyone has an estate. You don’t have to leave your estate to a family member. You can choose who to leave it to, including close friends, your church, or a charity whose work you admire. 

 

The team at Morgan Law Center would enjoy the chance to help you create an estate plan that covers all of the above issues and more. When you sit down with a member of our team, you can rest easy knowing the plan we create will save your family and loved ones a time, money, and heartache. Contact our office in Lake City, Florida today for a consultation at (386) 755-1977.