The Role of Jurisdiction in Probate Proceedings
The probate process is generally a matter of state law. However, which state’s law may not always be clear. It is becoming increasingly common for people with significant assets to own property outside of the primary state where they reside. This is especially true in a popular vacation destination like Florida. In these cases, the laws of more than one state may come into play during the probate process.
Generally, the probate process is controlled by the laws of the state in which the person was a resident at the time of death. Intangible personal property like money in banks, retirement funds, stocks and other investments is usually considered to be located in the owner’s home state — and therefore subject to that state’s probate laws — regardless of where the bank or custodian actually is. However, real estate is a different matter. Real estate is subject to the probate laws of the state in which it is located. This can create several issues when a Florida resident dies owning property in other jurisdictions:
- Ancillary probate proceedings may have to occur in the states where this property is located.
- A will that is acceptable for probate in Florida may not be acceptable under the laws of another state and vice versa.
- Other states may have different rules of distributing property not covered by a valid will.
- Other states may impose inheritance and estate taxes that do not exist in Florida.
Certain types of personal property may generate similar issues under some circumstances. Fortunately, these issues are far from insurmountable with the right legal help. A seasoned Florida probate attorney can assist personal representatives in managing multi-state probate and can even coordinate with out-of-state counsel when necessary to expedite the process.