It sometimes seems confusing to clients to find out that the probate process (the court process one needs to go through when a person passes away and leaves a will) and the administration process (when one dies without a will) is different in every state. While there are many similarities in the process, some states have more streamlined processes than others.
Surprisingly, New York is one of the easiest states to probate a will and administer an estate, while Florida is one of the most difficult. If one is a snowbird, spending time in each state, the question becomes, in what state is the will probated or the estate administered? This is determined by the residency one declares while one is alive. Having said that, however, caution must be taken when giving information for the death certificate, because the state you put down for residency there will often control where the procedure must occur.
What are the differences in the process between New York and Florida? In a nutshell, in New York, the probate and administration process usually ends once the Court issues Letters to the Executor or Administrator of the estate. Unless a beneficiary complains about something in the aftermath, the Court is not involved. A very simple inventory of assets is filed with the Court, concluding the matter. On the contrary, in Florida, there are many steps to be taken before Letters are issued, and after. These include publishing a notice to creditors in the newspaper, filing a detailed inventory, and preparing and filing a host of documents which must taken care of after Letters are issued, including documents which must be signed by the beneficiaries, in order to conclude the process. A formal discharge must be obtained from the Court, a process which can easily take a year. In comparison, a diligent attorney who is familiar with the probate and estate administration process can conclude an estate in New York within a month or two.
It is often recommended, if one is a New York resident planning to change residency to Florida, or some other state, to prepare a revocable living trust, to avoid probate or estate administration in a place where such a process may be arduous. In the interim, it is helpful to know that a will prepared properly in a state where one resided should be accepted by the new state. Notwithstanding that, since the will execution requirements in Florida are more stringent than in New York, the Florida courts will make the process in Florida a bit more difficult as a result. If a client is considering a move to Florida, then preparing a will in accordance with Florida law, is good practice, to avoid problems down the road.
Of course, it is extremely helpful to retain an attorney who is licensed to practice law in both New York and Florida, and who is familiar with estate planning and administration in both states. That will be quite valuable in moving the process along expeditiously.