Deciding where to file a probate in Florida can often be very challenging. The general rule is that a probate should be filed in the county where the person who died (decedent) was domiciled. Domicile refers to the county and state where someone primarily lived. Domicile is often used interchangeably with residency, although they are slightly different. You can live somewhere as a resident but maintain a legal domicile in another state.
Domicile refers to someone’s fixed, permanent home. You can temporarily live elsewhere but still be domiciled here in Florida if you maintain your primary home and/or legal ties and intend to return to Florida. So, if a decedent resided in a specific county in Florida, the probate should be opened in that specific county.
Example: Dom lived half the year in Sarasota County, Florida, and half the year in Buffalo, New York. For tax and legal purposes, his homestead and legal residence were in Sarasota County.
Result: Dom’s domicile will be Sarasota County since that is his permanent legal home. Dom’s family should open the probate for his estate in Sarasota County, Florida.
To be domiciled in Florida, you do not need to own property in a specific county. A decedent can be domiciled here in Florida while renting or only living in Florida for a portion of the year. However, the decedent must maintain enough ties to Florida to be considered domiciled here. Here’s a helpful flow chart that details several factors to look at when determining whether someone is domiciled here in Florida:
Note: there is no requirement that all factors must be met for someone to be legally domiciled here in Florida. However, the more boxes you check off, the more likely you will be considered domiciled here in Florida.
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What if a Non-Resident Dies Owning Property in Florida?
If a non-Florida resident dies with property here in Florida, the probate is typically opened where the decedent died. If the decedent owned multiple properties in Florida in different counties, you can select the county where most of the properties are located to open the probate. The personal representative will then be able to take control of all of the other properties once appointed by the Court, and the properties can be sold or transferred to the beneficiaries.
Example: Delores died as a New York resident. She owned four rental properties in Florida: two in Sarasota County and two in Manatee County.
Result: Delores’ personal representative/executor can open the ancillary probate here in Florida either in Sarasota or Manatee County.
Tip: You may want to consult with a probate attorney before deciding which County to file in. Some counties in Florida are easier to deal with in probate cases.
What if a Probate is Filed in the Wrong County?
If the probate is filed in the wrong county in Florida, you can petition the court to transfer the probate to the correct county court. You can also have the court administratively close the probate and then re-open the probate in the correct county.
Caution: If you administratively close the first probate case and re-open the case in the new county, you’ll have to pay the court filing fee again.
What if Someone Dies as a Non-Resident of Florida and Does Not Own Property Here in Florida?
If someone dies outside of Florida and they are neither a resident of Florida nor do they own property here in Florida, the statute allows a debtor of the decedent to open a probate here in Florida. The probate needs to be opened in the county where the debtor resides. It is extremely rare for a debtor to open probate here in Florida, but it can happen in unique circumstances.
Example: George died in New York and had no ties to Florida. His ex-wife lives in Tampa, and George owed many thousands of dollars to his ex-wife for child support. George’s family never opened an estate in New York.
Result: George’s ex-wife can open an ancillary probate in Hillsborough County since she resides in Tampa and George’s estate owes many thousands of dollars to her for child support.