How Canadian Citizens Should Own Florida Property

09/07/2010 by Michele R.J. Allinotte

Note from Michele:  This is a guest post by my colleague, Maura S. Curran of The Curran Law Firm, P.A. in Jupiter, Florida (www.TheCurranLawFirm.com), which originally appeared on her blog at: http://thecurranlawfirm.com/blawg/?p=37. This issue is an important one for those of you who own or are thinking of buying a vacation home outside of Canada.

By Maura S. Curran

Are you a Canadian and own real property south of the border?  Far south, say in Florida?

If you are like many Canadians, you own a second home in the US, and in particular, the Sunshine State, Florida.  Why not?  Florida has beautiful winters – no need for parkas and galoshes here, nope, just sunscreen and sunglasses.  But do you understand what happens if you die leaving property in the US?  What about if you become incapacitated?

There are many questions to consider if you become incapacitated or die while owning real property in Florida when you are not an American citizen.  Will there be US federal estate taxes?  Do you have to probate?  Who is allowed to be the personal representative? Does my estate need an attorney?

Florida law requires anyone dying and owning Florida real property in their own name to file a probate in a Florida Circuit Court so the property can legally transfer to your beneficiary.  The probate process can take several months, cost thousands of dollars in fees and costs, and is public record plus it can create unnecessary stress on everyone involved with an international probate.

But did you know that probate is voluntary?  You can legally avoid the cost and time and public nature associated with probate.  One common way is to have a revocable living trust own your property.  When a trust owns the property you avoid probate and your beneficiaries can avoid the hassle, delays, costs and stress of having not only a probate, but an international probate.

Do not be confused however, a trust alone will not avoid federal US estate taxes.  Depending on the size of your assets, your estate may be subject to federal estate taxes.  Currently there are no federal estate taxes, however, starting in 2011 depending on the size of your estate, your estate could be taxed at 55% !   So if you own property exceeding $1 million you need advanced estate planning in order to minimize, if not avoid, federal estate taxes.

Want yet another reason to have the property held in a trust?  Should you become incapacitated, there is no need to have a Florida probate court approve the guardianship of the owner – another time consuming, stressful court procedure.  Rather, if you are the Trustee, the successor trustee will assume your duties – much quicker and easier process to change a trustee than to get court approval for a guardianship.

If you are a Canadian citizen and own or are considering purchasing property in Florida, call my office and ask to have a consultation regarding your Florida home or visit my online virtual office at www.AbacoaVLO.com – serving all of Florida!

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7 Comments

  1. If a Canadian owns property in Florida and dies but leaves property to someone living in Canada- what are the first steps in arranging transfer or selling property. I have never done this before and just the thoughts are stressful. Also, what does probate and international probate mean

    Comment by karen — 11/26/2010 @ 7:23 pm


  2. Is a Canadian better off to sell the Canadian home ,before purchasing a Us property, just wondering if the taxes would be less if you only owned one property?

    Comment by Shelley Evans — 04/06/2014 @ 2:11 pm


  3. If the living trust owns the property in Florida, is it hard for that Canadian to purchase a home in Canada?

    Comment by Shelley Evans — 04/06/2014 @ 2:30 pm


  4. A Florida living trust cannot own property in Ontario.

    Comment by Michele R.J. Allinotte — 04/07/2014 @ 12:31 pm


  5. That is a question an accountant would need to answer, taking into account all the relevant facts on the particular tax payer. The article was written for Canadians who have a primary residence in Canada and are purchasing a second home in the U.S.

    Comment by Michele R.J. Allinotte — 04/07/2014 @ 12:32 pm


  6. Those are a lot of questions and they are really beyond the scope of this blog post.

    Comment by Michele R.J. Allinotte — 04/07/2014 @ 12:34 pm


  7. My wife and I own a condo in Florida and are Canadian residents. We have two daughters, and neither are on the title deed. We have wills in Ontario Canada that do not specifically mention the condo. A friend said we should have a will in Florida. Is this true? If not, what should we do to make it easier for our daughters in the event of our death? Thank you.

    Comment by Richard Blais — 03/23/2016 @ 2:25 am


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