Probate Pitfalls in Florida and New York — And How to Avoid Them

Families often come to me after a loved one passes away and say the same thing: “I had no idea probate was this complicated.” If the decedent owned property in multiple states, the process becomes even more challenging. Many of my clients are "snowbirds" or have property in two states. I will use Florida and New York as examples here, the two states that I practice in. Florida and New York each have their own rules, timelines, tax structures, and procedures, and navigating both at the same time can become an unexpected burden. The best way to void these pitfalls of course, is through proper estate planning that would avoid probate. But sometimes probate is necessary despite best intentions. Below are the most common probate pitfalls I see in my dual-state practice — and more importantly, how to avoid them.

1. Failing to Understand “Domicile” and Which State Controls the Estate

Pitfall: Many clients incorrectly assume that the state where they own the most valuable property controls the probate. In reality, the state of domicile (legal residence) governs the primary probate proceeding.

For example:

• A New York resident with a Florida vacation home must open the main probate in NY.

• A Florida resident who owns a condo in Manhattan must open the main probate in FL.

Why it matters: Domicile determines:

• Which court oversees the estate

• Who can act as personal representative/executor

• What notices and timelines apply

• Which tax rules govern the estate

• New York courts are very slow and you will wait a long time for probate.

How to avoid this pitfall:

• Clearly establish domicile during life (driver’s license, voter registration, tax filings).

• Update estate planning documents when you change states.

• Avoid contradictory indicators (e.g., NY tax filings paired with FL “Declaration of Domicile”).

• A will is not enough in most cases - see below if you own real estate in either state.

2. Forgetting That Out-of-State Property Requires a Second Probate

Pitfall: Clients are often surprised to learn that real estate in another state requires a separate probate proceeding, called:

• Ancillary Administration in Florida

• Ancillary Probate/Administration in New York

This is required even if the main probate is opened elsewhere.

How to avoid this pitfall: A will is not enough. Use estate planning tools that avoid ancillary probate, such as:

• Revocable trusts (placing each property in a trust)

• Florida Enhanced Life Estate (Lady Bird) Deeds

• NY or FL LLC ownership structures for investment property

• Joint tenancy with rights of survivorship (when appropriate)

A few proactive steps during life can avoid months of court delays later.

3. Naming a Personal Representative or Executor Who Cannot Serve

Pitfall: Florida is strict: non-relatives who live outside Florida generally cannot serve as personal representatives. New York has rules as well: certain felonies disqualify an executor, and non-U.S. residents cannot serve without appointing a co-fiduciary.

Choosing the wrong fiduciary leads to delays and expensive re-filings.

How to avoid this pitfall:

• Name backup fiduciaries in your will.

• In Florida, name a spouse, adult child, parent, or someone who resides in FL.

• In New York, avoid naming non-U.S. residents or individuals with disqualifying convictions.

• Review your documents every 3–5 years to ensure the nominees still make sense.

4. Failing to Account for Florida’s Unique Homestead Rules

Pitfall: Florida homestead law is extremely protective — but also extremely technical. Mistakes include:

• Leaving the homestead to someone who cannot legally inherit it

• Forgetting elective share rights

• Assuming the homestead always avoids probate (sometimes it does not)

• Forgetting that minor children can restrict transfers

How to avoid this pitfall:

• Work with an estate planning attorney who understands Florida’s homestead restrictions.

• Use Lady Bird deeds, revocable trusts, or custom will provisions to carefully plan the homestead’s transfer.

• For married couples, review whether the spouse has elective share or homestead rights that override the will.

5. Improper or Outdated Beneficiary Designations

Pitfall: Many people assume that their will controls everything. It doesn’t. Assets such as:

• Life insurance

• 401(k)s / pensions

• IRAs

• TOD accounts

… all pass outside the will. If beneficiary designations are outdated, missing, or inconsistent, your estate may face:

• Litigation

• Delays

• Assets going to the wrong people

• Tax consequences

How to avoid this pitfall:

• Review all beneficiary designations every 2–3 years.

• Ensure they align with your trust/will.

• Coordinate retirement accounts with state law (NY and FL have different protections).

• Avoid naming the estate unless advised to do so.

6. Not Keeping Documents Updated After Life Changes

Pitfall: Marriages, divorces, births, relocations, and business acquisitions all require document updates — but many people forget.

How to avoid it:

• Review your plan every 3 years or after any major life event.

• Update your trust or will immediately after moving between FL and NY.

• Ensure your documents comply with current state laws.

Conclusion

Cross-state probate issues are avoidable with proper planning. By coordinating your estate plan with both Florida and New York law, you can:

• Avoid ancillary probate

• Reduce estate taxes

• Ensure your chosen fiduciaries can serve

• Preserve homestead rights

• Protect your beneficiaries from conflict and delay

If you own property or have family in both states, the best approach is a customized estate plan that anticipates these pitfalls before they ever become a problem. Many of my clients are bi-state and I would be happy to assist you with your planning. Give me a call or email for help any time.