How Ancillary Probate Delays Can Impact Real Estate Sales

Written by a Florida Bar-licensed estate planning attorney serving Sarasota and surrounding area

When someone passes away owning real property in Florida but resides in another state, their estate may need to go through ancillary probate to legally transfer or sell that property. Unfortunately, delays in this process can create significant complications, especially for heirs trying to sell the home. In this article, I’ll break down how ancillary probate works, why it causes delays, and what strategies can help families avoid these roadblocks in the future.

What Is Ancillary Probate in Florida?

Ancillary probate is a secondary legal proceeding required when a non-Florida resident dies while owning real estate or other tangible property in Florida. While their primary estate is probated in their home state (the domiciliary proceeding), Florida courts must still oversee the transfer or sale of Florida-based property.

According to Florida Statutes §734.102, ancillary probate is generally required before deeds can be lawfully transferred or before a sale of property can proceed.

Common Causes of Delays

Delays in ancillary probate proceedings are not uncommon, and they can affect everything from real estate closings to family relationships. These delays can stem from:

1. Out-of-State Heirs and Executors

If beneficiaries or personal representatives live outside Florida, signing and notarizing required documents may take additional time. They may also need to designate a local Florida resident to serve as a registered agent, per court rules.

2. Unresolved Title Issues

Real estate cannot be sold with a clouded title. Without a completed probate, title companies will not issue clean title, stalling or canceling a closing.

3. Court Backlogs

Certain Florida counties experience longer wait times for hearing dates and document approvals, especially during peak filing seasons.

4. Missing or Outdated Estate Documents

When no will is found, or when documents lack clarity on real estate intentions, it may take longer to determine rightful ownership.

The Impact on Real Estate Sales

When heirs attempt to sell inherited property without completing ancillary probate, they face:

• Delayed closings: Buyers typically won’t wait for extended probate timelines.
• Losing offers: Time-sensitive transactions may fall through.
• Unexpected expenses: Maintenance, insurance, and taxes continue during delays.
• Family conflict: Disagreements may arise over who handles what and when.

In short, without probate, the family lacks the legal authority to act, even if the home is vacant and ready to sell.

Legal Strategies to Avoid Probate-Related Delays

The good news? You can plan in advance to avoid ancillary probate entirely. As an experienced probate attorney serving the Sarasota area, I often recommend the following tools:

Revocable Living Trusts

Property placed in a properly funded trust can bypass probate altogether. The trustee can sell or transfer the property according to your instructions without court involvement.

Enhanced Life Estate Deeds (Lady Bird Deeds)

This deed allows the owner to retain full control during their lifetime while automatically transferring the property to a named beneficiary upon death.

Joint Ownership with Rights of Survivorship

Naming a joint owner ensures that property passes directly to the surviving co-owner, avoiding probate. This strategy requires careful consideration in blended families or second marriages.

Regular Document Updates

As life circumstances change, especially when children move out of state or family dynamics evolve, estate planning documents should be updated to reflect current wishes and minimize confusion.

Final Thoughts

Ancillary probate is a common hurdle in Florida, but it doesn’t have to slow down the process of passing on or selling a loved one’s real estate. Whether you’re an out-of-state heir or a Florida property owner looking to ease the burden on your family, proactive estate planning is key.

For personalized guidance on avoiding probate delays and protecting your Florida real estate, contact an experienced estate planning and probate attorney serving Sarasota.

Schedule a consultation today to discuss your situation and protect your legacy.

Sources:

• Florida Statutes §734.102 – Ancillary Administration
• Realtor.com – What You Need to Know About Selling Inherited Property
• The Florida Bar – Consumer Information on Probate
  

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. For guidance specific to your circumstances, please consult a licensed Florida attorney.