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Can Another State Order My Executor to Sell My Florida Home?

Trusts

One of the cardinal principles of probate in the United States is that it a state-specific process. That is to say, when a Florida resident dies, their estate is subject to probate in Florida, at least with respect to any property that is located or situated within this state. If a Florida resident owns a second home in another state, say New York, then that property is subject to a secondary (or ancillary) probate in the other state.

New York Judge Orders Executor to Liquidate Florida Property to Pay Nursing Home Bill

But what happens when the deceased owner’s primary estate lacks sufficient assets to pay the expenses of the estate? Can the court force a sale of property in the secondary estate? And would doing so violate the authority of the other state’s courts?

A probate court in New York recently addressed these questions. This case involves a woman (the decedent) who passed away while living in a nursing home. The nursing home subsequently filed a substantial creditor’s claim against the decedent’s New York estate.

The personal representative of the estate, the decedent’s cousin, told the probate court in New York that the estate consisted of “a few thousand dollars in cash” and a house in upstate New York that was under foreclosure. The estate simply did not have the funds to pay the nursing home’s bill. In legal terms, the estate was “insolvent.”

But the nursing home pointed out that the decedent also owned a condominium in Marco Island, Florida. Under the terms of the decedent’s will, this condo was left to her cousin and her brother as co-owners. Notwithstanding this, the nursing home asked the New York court to force a sale of the Florida condo in order to pay the decedent’s bill.

The estate argued the New York court had no authority to interfere with the “devise” of a Florida property to the beneficiaries under the terms of the decedent’s will. The New York court did not quite see it that way. While it was true that a New York court “does not exercise jurisdiction over real property situate outside New York State for the purpose of directing its sale,” the court could direct the personal representative “to take appropriate action with regard to any such out of state realty.”

The court said this was consistent with both New York and Florida law on this subject. Both states authorize a probate court to liquidate the assets of an estate to satisfy legitimate debts, including creditor claims. And in this case, given the New York estate itself was insolvent, it was appropriate to direct the personal representative to “marshal” out-of-state assets in order to pay the decedent’s nursing home bill.

Speak with a Lee County, Florida, Estate Planning Attorney Today

Estate planning is not just about dividing up your property. It is also about setting up a process for paying your legitimate debts after you die. An experienced Fort Myers estate planning lawyer can provide you with additional advice or assistance on this subject. Contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free confidential consultation.

Source:

scholar.google.com/scholar_case?case=16358690101000784906

https://www.kuhnlegal.com/are-there-assets-you-cannot-or-should-not-put-into-a-revocable-trust/

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