Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. This is especially true in Florida, which continues its reign as the top destination for international home buyers. Not surprisingly, cross-border issues often arise in Florida probate proceedings. This is nothing new for most of us. Fortunately, Florida law equips practitioners — and our courts — with all the tools necessary to navigate these multi-jurisdictional estates.
Lurking under these tools is an important distinction between a court’s “in rem” jurisdiction over property (which courts in multiple jurisdictions can exercise simultaneously over a single decedent’s disparate estate property) and a court’s “in personam” jurisdiction over a particular party (which usually only one court can exercise at a time in a given case).
F.S. 731.105 tells us Florida probate cases are in rem proceedings and F.S. 731.1055 tells us a foreign decedent’s Florida real estate is governed by Florida law. Read together, these rules mean that as Florida probate practitioners we live in a world where multiple concurrent judicial proceedings in different states or foreign nations involving a single decedent’s cross-border estate are not only authorized, they’re to be expected.
For example, if a decedent who was domiciled in Jamaica when he died owned real estate in Florida it’s subject to Florida law (and needs to be probated in Florida), if the same decedent owned real estate in Jamaica you should assume it’s subject to Jamaican law (and needs to be probated in Jamaica), and if the same decedent owned real estate in New York you should assume it’s subject to New York law (and needs to be probated in New York). One decedent, three different jurisdictions, three concurrent probate proceedings. What could possibly go wrong?
Case Study
Markes v. Markes, — So.3d —- 2025 WL 1242092 (Fla. 4th DCA April 30, 2025)
How do you probate the estate of a man who was born in Jamaica, spent most of his life in New York, amassed considerable real estate holdings in Florida, in his old age was the subject of a guardianship proceeding in New York (which remained pending through to the date of his death), and moved back to Jamaica for the last three years of his life where he died in 2023?
Start by figuring out where he was domiciled at the time of his death. That’s not always an easy question, and in this case it was contested. According to the 4th DCA, based on the trial court’s findings the decedent’s domicile at the time of death was Jamaica.
The Broward court’s factual findings, and even its analysis of the law, shows Jamaica was the Decedent’s domicile at the time of his death, as the court found that the Decedent had moved there with no stated intention of returning to the United States, whether it be to Florida or New York. The court’s factual findings show neither state to be the Decedent’s domicile.
Then identify where the decedent’s property is deemed to be located or sitused. As explained by Prof. Finch in Choice-of-Law and Property, the situs rules can be complicated. But for probate purposes they essentially boil down to the following: anything other than real property is deemed sitused in the decedent’s place of domicile at death. By contrast, real property is sitused where it’s physically located. As in, no matter where on the planet you’re domiciled when you die, your Florida real estate’s sitused in Florida and gets probated in Florida.
If a non-resident dies with real estate in Florida, can your probate judge transfer your probate proceeding out of Florida? NO
Now back to our case. If all of our decedent’s property’s located in Jamaica, it’s easy. All you need to do is probate his estate in Jamaica. But it wasn’t. He owned real property in Broward County, Florida. No problem, probate that property in Florida and let Jamaica worry about the rest. Is that what happened? Nope. Proving once again that nothing’s ever certain in litigation … the probate court ordered the personal representative to “transfer” the probate proceeding to New York. Why? Because that’s the last place in the U.S. where the decedent resided. Does this make sense? Not even a little bit.
Just because the decedent was domiciled outside of Florida when he died doesn’t mean a Florida court lacks jurisdiction over his Florida real estate. So saith the 4th DCA:
[A] Florida court’s determination of [foreign] domicile does not relieve the court of jurisdiction over a decedent’s estate when the decedent owns property in this State. … Section 733.101, Florida Statutes (2023), establishes venue for probate proceedings in Florida: (1) The venue for probate of wills and granting letters 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. (c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides. Id. (emphasis supplied). Here, Florida had jurisdiction, and venue was proper in Broward County, because the Decedent, although not domiciled in this State, owned property in Broward County.
Novel and Bewildering?
A Florida court with jurisdiction to probate a decedent’s Florida real estate can’t punt the case to somewhere else. In Markes the 4th DCA quotes a 1997 3d DCA opinion (Rogers v. Rogers) that described a similar probate-court transfer ruling as “novel and bewildering.” And just to make sure we all get the point, the 3d DCA tossed in a little Latin when describing the probate court’s ruling: “ipse dixit,” which loosely translates to: this is crazy talk.
OK, back to basics. If a decedent dies with real estate in Florida that’s where that property gets probated … no matter where on the planet he was domiciled when he died. So no, you can’t “transfer” a non-resident’s probate proceeding out of Florida. So saith the 4th DCA:
Furthermore, the Broward court erred in determining that the proceedings should be “transferred” to New York where the guardianship remains pending, but no probate proceeding has been opened. Indeed, no authority exists for a Florida court to “transfer” a proceeding to another state. In Rogers v. Rogers, 688 So. 2d 421 (Fla. 3d DCA 1997), in a similar probate contest as is present in this case, one child of the decedent objected to venue in Florida and sought to have the probate proceedings transferred to California. The trial court granted the motion and ordered the transfer. Id. at 421. In reversing, the Third District stated:
The trial court had absolutely no authority to “transfer” the probate proceeding to San Francisco, California .... The trial court's resolution of the venue issue is so novel and bewildering that this court is stymied in its efforts to find any authority relating to the proposition of whether a Dade Circuit Court can, ipse dixit, crate up and move pending litigation across the country. We then likewise hold, ipse dixit, that it cannot.Id. at 422. Likewise, the Broward court here had no authority to “transfer” this probate proceeding to New York.
And if this situs rule means a Florida court needs to adjudicate a Jamaican decedent’s will contest to figure out who gets the Florida real estate, so be it. So saith the 4th DCA:
Florida has authority to determine the validity of any will executed by a decedent, even if he was not domiciled in this State when he died. See, e.g., In re Estate of Barteau, 736 So. 2d 57, 58 (Fla. 2d DCA 1999); In re Estate of Hatcher, 439 So. 2d 977, 980 (Fla. 3d DCA 1983); In re Swanson’s Estate, 397 So. 2d 465, 467 (Fla. 2d DCA 1981); see also Biederman, 161 So. 2d at 542 (“The state in which the testator’s property is located has jurisdiction over the property, and it has the power to grant original probate without waiting for the courts of the testator’s domicile to pass upon the question of the validity of the will.”).
An insider’s perspective: Brandan Pratt
If you’re a practitioner you might have some ideas for why this case developed the way it did, but you wouldn’t know for sure unless you had the good fortune to speak with one of the attorneys involved. Well in this case, we’re all in luck. Probate litigator extraordinaire Brandan Pratt was on the winning side of this appeal. I asked Brandan if I could interview him about the case, and he graciously agreed.