Estate Planning and Tax Lawyer Blog

For residents of Jacksonville and Duval County Florida who pass away, a probate proceeding would take place in Duval County. The place where the probate is to take place is called the venue.

So for our story, lets assume Bob, who lives in Jacksonville, Florida, passed away in his home. Bob’s assets are a bank account at Jacksonville Bank, a brokerage account at Merrill Lynch, a bank account at New York Bank and a second home in New York City. So where should the probate or probates take place?

Section 733.101 states the rules for the venue of a probate proceeding in Florida. It states that the venue for probate shall be “(a) in the county in this state where the decedent was domiciled; (b) if the decedent had no domicile in this state, then in any county where the decedent’s property is located; and (c) if the decedent had no domicile in this state and possessed no property in this state, then in the county where the debtor of the decedent resides.” So what does this mean?

Well if the decedent was domiciled in Florida, the probate will take place in the county where the decedent lived. Pretty straight forward. So in Bob’s situation, since he lived in Jacksonville, Florida, the proper venue for his primary probate will be in Duval County, Florida. I will explain why I say primary here in a bit.

If the decedent had no domicile in this state, aka no primary residence, then the proper venue for the probate will be where the decedent owned real estate (his second home). So if Bob’s primary home was up in New York City but he had a second home in Jacksonville, then Bob’s primary probate would be up in New York and the personal representative would have to open what is called an ancillary probate here in Duval County (now you see why I said primary probate above). An ancillary probate is a probate opened to deal with assets owned outside of the state where the decedent’s primary residence was located. So if you own real estate in several states, be weary of having to open several probates in several states…it can get expensive.

Finally, if the decedent had no domicile and possessed no property in the state of Florida, then the venue is proper where a debtor of the decedent resides. A debtor is someone who owes you money. This situation is rare since usually the decedent will have some sort of property if they also have a debtor.

So lets go back to Bob from above. Remember that Bob, who lives in Jacksonville, Florida, passed away in his home. Bob’s assets are a bank account at Jacksonville Bank, a brokerage account at Merrill Lynch, a bank account at New York Bank and a second home in New York City. Where would Bob’s estate be probated based upon Section 733.101?

The primary probate will take place in Jacksonville since Bob’s primary residence was located in Jacksonville. Within the primary probate, we would include Bob’s Jacksonville Bank account, his Merrill Lynch account and even his New York Bank account. Why the New York account? A bank account is money that can technically be accessed anywhere in the world and not just in New York. Due to that fact, bank accounts, stock accounts, etc. may be probated in the location of the decedent’s primary residence and do not have to be probated where the financial advisor or banker is located. However, there will still have to be an ancillary probate opened in New York due to the second home in New York City. Want to know how to avoid all of this?