Understanding and Tackling Ancillary Probate

No matter how much planning one does to prepare for the future, no one knows exactly when they’re going to die. In the matter of probate, this can cause various issues, especially when dealing with assets and property in multiple states.

The probate process can be time-consuming and expensive when someone dies with all of their property centralized in their state of residency, so consider having to tackle multiple probates at once. Because real estate and other tangible items are governed by the probate laws of the state in which the property is situated (and not where the decedent holds residency), it is necessary to open an additional probate in the state where the property lives. This is known as ancillary probate.

How does the ancillary probate process work?

Probate will always begin in the state of the decedent’s residence. Once a personal representative has been appointed by the court, they will begin a second probate process in the state in which the decedent owns real estate or other tangible property within the secondary or ancillary state.

Some states may require a second executor who lives in the ancillary state to handle the distribution of those assets, and if your estate attorney isn’t licensed to practice in the ancillary state, you may need to hire a second attorney who is licensed to practice in that state. Additional court costs and filing fees may also be required. Further, because the courts understand how difficult the probate process can become, some states will allow a foreign will, which allows the executor in the state of residency to go through a simplified filing process instead of opening a new probate from scratch.

How do you determine a decedent’s state of residency?

Factors to consider when determining someone’s permanent residency include where the person was registered to vote, where he or she received mail, what state they filed their taxes, where their driver’s license was issued, and where their primary doctors are located.

How can you avoid ancillary probate?

Unless the property is small or doesn’t have much value (at which point you may be able to utilize expedited procedures if the state allows), there isn’t much one can do to avoid ancillary probate after someone dies. However, if someone owns property in another state, make sure they include one of the following stipulations when drafting their will or trust:

• Put the property in a trust;
• Use a transfer-on-death deed; or
• Add a co-owner to the title – this can be a joint tenancy or community property with right of survivorship

By doing so, you will be able to enjoy the benefits of owning property in another state while guaranteeing that no matter when you die, your heirs will not have to deal with the struggles of ancillary probate, let alone an initial probate.

Tags: ancillary, ancillary probate, Estate, Estate Planning, Probate, process, residency
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