Florida Probate When You Live Out of State
Fla. Stat. §§ 733.302, 733.304, 733.212
You do not have to live in Florida to inherit from a Florida estate. Out-of-state beneficiaries get the same notices and the same deadlines as local family. A nonresident may serve as personal representative only if closely related to the decedent, and must designate a Florida resident agent before the court issues letters.
What it is
This page is for family members who live outside Florida when someone who lived in Florida dies. The estate is opened in the Florida county where the decedent lived, and Florida law governs it. If the situation is reversed, and the person who died lived in another state but owned Florida property, the Florida case is a separate proceeding called ancillary administration (Fla. Stat. § 734.102).
Where you live does not change your share. The will, or Florida's intestacy rules if there is no will, decides who inherits. When the personal representative serves you with formal notice, the Florida court can act on your interest in the estate property, but formal notice does not by itself give the court personal jurisdiction over you (Fla. Stat. § 731.301(2)). Anyone who receives proper notice of a proceeding is bound by the orders entered in it (Fla. Stat. § 731.301(3)).
Distance matters most in two places: who can serve as personal representative, and how quickly you must act once papers arrive in the mail. Both are covered below.
Who Can Serve as Personal Representative From Out of State
A Florida resident who is sui juris (a legally competent adult) qualifies to serve (Fla. Stat. § 733.302). A person not domiciled in Florida qualifies only if the person is one of the following (Fla. Stat. § 733.304):
- A legally adopted child or adoptive parent of the decedent.
- Related to the decedent by lineal consanguinity, meaning a direct ancestor or descendant such as a parent, child or grandchild.
- The decedent's spouse, brother, sister, uncle, aunt, nephew or niece, or someone related by lineal consanguinity to any of those people.
- The spouse of a person who qualifies under one of the categories above.
A nonresident friend or business associate who does not fit one of these categories cannot qualify, even if the will names that person. Every personal representative, resident or not, is also disqualified by a felony conviction, a conviction for abuse, neglect or exploitation of an elderly person or disabled adult, mental or physical inability to perform the duties, or being under 18 (Fla. Stat. § 733.303(1)). A personal representative whose Florida domicile was a requirement of appointment can be removed if that person later moves out of Florida (Fla. Stat. § 733.504(11)).
Out-of-State Family vs. Ancillary Administration
| Aspect | Florida decedent, family elsewhere | Ancillary administration |
|---|---|---|
| Where the decedent lived | Florida | Another state or country, with property in Florida |
| The Florida case is | The main (domiciliary) probate | A secondary case for the Florida assets (Fla. Stat. § 734.102) |
| Who may serve | Florida residents, or close relatives under Fla. Stat. § 733.304 | The person the will designates for Florida property, or the foreign personal representative, if qualified to act in Florida (Fla. Stat. § 734.102(1)) |
Deadlines That Run From Service on You
Most beneficiary deadlines start on the date a document is served on you, not the date the decedent died and not the date you get around to reading it. If you sign a waiver of service instead, service is treated as happening on the date the waiver is filed (Fla. Stat. § 733.212(8)). Keep every envelope and note the date it arrived.
- 3 months after service of the notice of administration: deadline to object to the validity of the will, the venue or the court's jurisdiction. The period can be extended only for estoppel based on the personal representative's misstatement of the deadline (Fla. Stat. § 733.212(3)).
- 4 months after service of the notice of administration (or 40 days after any will contest or construction proceeding ends, if later): deadline for a spouse or children to petition for exempt property such as household furnishings and up to two cars (Fla. Stat. §§ 733.212(2)(d), 732.402(6)).
- For a surviving spouse: an elective share must be filed by the earlier of 6 months after service of the notice of administration or 2 years after the death, unless extended (Fla. Stat. § 733.212(2)(e)). See the Florida elective share.
- If the decedent owed you money: a claim must be filed by the later of 3 months after first publication of the notice to creditors or 30 days after the notice is served on you (Fla. Stat. § 733.702(1)). See the notice to creditors.
- The inventory: the personal representative must serve it on the surviving spouse, each heir in an intestate estate and each residuary beneficiary (Fla. Prob. R. 5.340(d)). You may ask in writing how an asset's value was determined, or for a copy of any appraisal (Fla. Stat. § 733.604(3)).
- The final accounting and petition for discharge: objections must be filed within 30 days after the last of them is served (Fla. Prob. R. 5.400).
Designating a Florida Resident Agent
Before letters of administration issue, a personal representative must file a designation of a resident agent, and the agent must sign a written acceptance (Fla. Prob. R. 5.110). The designation is not required if the personal representative is a Florida Bar member who lives in and has an office in Florida, or a corporate fiduciary with a Florida office.
A resident agent who is not a Florida Bar member living in Florida must reside in the county where the probate is pending. The designation and acceptance are consent to service of process or notice on the agent, so papers in a lawsuit against the personal representative can be delivered to the agent in Florida (Fla. Prob. R. 5.110). The designation can be included in the petition for administration or the oath.
Signing Documents From Another State
Many probate papers must be verified, which is not always the same as notarized. Florida law lets a document that must be verified be signed with a written declaration that begins "Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true" (Fla. Stat. § 92.525(1)(c), (2)). The Florida Probate Rules provide for the same kind of declaration (Fla. Prob. R. 5.020(e)). A false declaration is a third-degree felony (Fla. Stat. § 92.525(3)).
When a document does need a notary, a Florida online notary physically located in Florida may notarize your signature by two-way audio-video even though you are in another state. The notary must confirm your identity and confirm that you want the notarization performed by a Florida notary under Florida law (Fla. Stat. § 117.265(1)–(4)). Which method a given document requires depends on the document, so ask before you sign anything.
Is an attorney required?
For the personal representative, yes. The Florida Probate Rules require every personal representative to be represented by an attorney admitted to practice in Florida, unless the personal representative is the sole interested person (Fla. Prob. R. 5.030(a)). That rule applies to the personal representative; it does not require a beneficiary to hire a lawyer. A beneficiary who lives out of state may still want independent advice before a deadline runs, before signing a waiver or receipt, or when the personal representative is not communicating. If a family dispute develops, see removing a personal representative.
Frequently Asked Questions
Can I be the personal representative of a Florida estate if I live in another state?
Yes, if you are closely related to the decedent. Under Fla. Stat. § 733.304, a nonresident qualifies only as an adopted child or adoptive parent, a lineal relative such as a child or grandchild, a spouse, sibling, aunt, uncle, niece or nephew (or a lineal relative of one of them), or the spouse of someone who qualifies. You must also designate a Florida resident agent before letters issue (Fla. Prob. R. 5.110).
Do I have to travel to Florida for probate?
Not necessarily. Many probate papers only need verification, which Florida law allows by a signed written declaration under penalties of perjury rather than a notary (Fla. Stat. § 92.525). When a notary is required, a Florida online notary can notarize your signature by audio-video while you are in another state (Fla. Stat. § 117.265). Whether a particular document or hearing needs more depends on the matter.
What is a resident agent in Florida probate?
A resident agent is a person in Florida who accepts service of legal papers on behalf of the personal representative. Florida Probate Rule 5.110 requires the designation and a signed acceptance before letters issue. An agent who is not a Florida Bar member living in Florida must live in the county where the probate is pending. Florida-resident Bar members and corporate fiduciaries with a Florida office do not need one.
How long does an out-of-state beneficiary have to contest a will in Florida?
The same time as anyone else. An interested person served with the notice of administration must object to the will's validity, the venue or the court's jurisdiction within 3 months after service, or the objection is barred (Fla. Stat. § 733.212(3)). Living out of state does not extend the deadline. For how challenges work, see contesting a will in Florida.
What if I never received a notice of administration?
The personal representative must promptly serve the notice on known beneficiaries (Fla. Stat. § 733.212(1)). The 3-month objection period runs from service on you, so it starts when you are served. Other events, such as the personal representative's discharge, can still affect your rights, so contact a Florida probate lawyer promptly. If service was missed in good faith, any liability for the failure falls on the estate (Fla. Stat. § 733.212(6)).
Is ancillary administration the same as probate for out-of-state heirs?
No. Ancillary administration applies when the person who died lived outside Florida but left Florida assets (Fla. Stat. § 734.102). When the decedent lived in Florida, the Florida case is the main probate, wherever the heirs live. See ancillary administration in Florida for the other situation.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Inheriting from a Florida estate while living elsewhere?
Call (407) 843-0430 or schedule a consultation with an Orlando probate attorney. Our office is at 910 N. Fern Creek Avenue, Orlando.
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