Snowbirds Wonder: Does Having Two Homes Mean Filing Two Probates?

So many individuals and couples delight in the pleasures of spending both halves of the year in lovely climates and having alternating access to cosmopolitan New York, with its theatres and museums, and the Sunshine State, with its winter warmth, relaxing pace and gentle beaches. Being a snowbird, with homes in both Florida and New York, has become incredibly popular with those who have reached middle-age or retired since they can enjoy the benefits of both locations yet travel to friends and family within only a few hours. 

As with so many idyllic plans, this one may seem to have a catch. Since most people recoil from the word “probate” almost as much as they do from the word “taxes,” the thought of having to go through the probate process twice may seem a horrible prospect. The wise among those who already have homes in both New York and Florida, and those contemplating taking the plunge, already know how important it is to have legal advice and representation from an accomplished attorney with knowledge and experience in probate and estate administration in both states.

Some Basics About State Probate Law

Real estate is always governed by the laws of the state which contains the property, not by the laws of the state in which the homeowner lives. This means that you may be required to go through probate twice if you live in one state but are the sole owner of real estate in another. Since you can only have one primary residence⁠—the one in which you vote and from which you pay your taxes⁠—you may be frightened by the legal complexities that will face your beneficiaries when you die.

The Ancillary Probate Process

Having to go through probate in a second (or even a third) state is known as “ancillary probate.” To the dismay of those who, as executors of the deceased person’s estate, have to become involved in it, ancillary probate can be costly and inconvenient. In many cases, the designated executor will have to find a “domiciliary probate” lawyer in the state in which the deceased individual made a permanent home and another attorney to handle the ancillary probate in the state in which the out-of-state real estate is located.

Fortunately, Snowbirds Have Viable Options

Once you recognize that you will be living the life of a snowbird, you will want to take steps to ease the path for your heirs and your executor. By contacting a probate attorney well-skilled in tackling estate planning matters from a snowbird perspective, you will give yourself the peace of mind you crave. Such a highly trained and experienced legal representative will be able to guide you through alternatives to the dreaded “double jeopardy” of ancillary probate. These options include assisting you in setting up one of the following methods of probate-free inheritance:

  • Tenancy in common
  • Joint tenancy with right of survivorship
  • Tenancy by the entirety, a form of ownership that can only exist between spouses
  • Putting the property in a revocable living trust

A savvy snowbird attorney will help you choose which tactic is best used to avoid ancillary probate in your particular case.