What NY Snowbirds Need to Know About Ancillary Probate
By: Barry E. Haimo, Esq.
March 17, 2022
Are you one of the many fortunate New Yorkers who call Florida your home away from home for part of the year? If so, you probably own a condo, timeshare, or other real estate property in Florida too. And it’s important that you know how your Florida property can affect your estate planning or you might risk leaving your loved ones a hand grenade.
One of the big things to know? It may make you subject to additional proceedings like ancillary probate. Below, we get into the details of what snowbirds need to know about ancillary probate, suggest helpful estate planning documents, and explain the value of hiring an experienced estate planning attorney to protect your properties and assets – no matter where they are.
What Is Ancillary Probate?
Any New York real estate and property you own can be administered in the state of New York as part of your estate proceedings. But if you own property in Florida – or anywhere else for that matter – it cannot be handled under New York state jurisdiction.
Both properties will need to be probated in each state, but your secondary property will be subject to “ancillary probate”in Florida, in addition to your primary probate in New York. And if you own any additional real estate properties, they are subject ancillary probate in each of their respective states.
Ancillary Probate in Florida
In Florida, the length of ancillary probate depends on the value and specifics of your property. A property with less value will be subject to summary administration, which takes less time and effort. But a property of greater value will be subject to formal administration, which can become very costly, require attorneys, and take a minimum of six months to resolve.
Probate can be time consuming, expensive, and stressful for your beneficiaries and draw out the estate proceedings process. Ancillary probate is an added complication for your family. Fortunately, there are ways to minimize or avoid ancillary probate completely for your Florida property.
Options for NY Snowbirds
If you are beginning your estate planning process, you know the importance of ensuring that your wishes are carried out effectively. And if you own Florida property as a New York resident, you want to make sure you plan accordingly. That way, your beneficiaries can inherit your out-of-state properties if you so wish. Without the proper documents, your beloved family vacation home can be subject to tedious proceedings – or fall into legal limbo.
The key to protecting your property and avoiding ancillary probate is to select an option that will change your Florida real estate from a probate asset to a non-probate asset. Hiring an attorney who specializes in probate and estate planning can help you craft the best plan for your needs.
One of the most popular options to avoid ancillary probate is to create a revocable trust. Under this option, you transfer the title of your Florida property out of your name and into the revocable trust agreement. In the event of your death, it would automatically transfer to its intended beneficiaries and avoid probate completely.
Another benefit of a revocable trust is that you have full jurisdiction over the trust and property during your lifetime and can alter the trust at any time as needed.
Another option to avoid ancillary probate is to add joint owners to your Florida property through the creation of a deed. Joint ownerships (with right of survivorship) mean that when one owner of a property dies, the title is automatically transferred to the surviving owner, such as a child or spouse.
But while this is an effective way to avoid probate, the property can still be subject to gift and estate tax, as well as potential creditor claims under certain conditions. So be sure to assess with your estate planning attorney if a joint ownership is right for you.
Life Estate Deed
Similar to joint ownership, a life estate deed allows the life tenant (owner) to have full use of the property until their death, when a remainder beneficiary will receive full ownership.
In Florida, this option is appealing because the life tenant has full use and full rights over the property during their lifetime (known as a “Ladybird Deed”) and can sell or mortgage the property without the consent of the remainderman. This is not the case in New York state, where you would need your remainderman’s consent to sell your property if it is held in a life estate deed.
Know the Differences in State Laws
Additionally, your estate can be subject to different laws depending on the state of your residency and the states in which you own property. Keep in mind that Florida and New York have different jurisdiction in regard to the following estate categories, and can even require different documents:
- State Estate Tax
- Vital Documents, such as power of attorney, living will, and health care proxy
Due to these differences, hiring an estate planning attorney can help you make sure you’ve covered all your bases while protecting your properties and assets.
The Advantage of Hiring an Estate Planning Attorney
Living the snowbird life should offer you relaxation, not the stress of worrying about estate planning. Haimo Law has offices in both Florida and New York to serve you and guide you through the jurisdiction differences in each state as part of our 4-step unique estate planning process.
Protect your family, assets, and business, and gain the peace of mind of knowing you’re prepared and in control. Contact us to get started today at 954-228-3369 (in Florida) or 631-889-2757 (in New York).
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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