Each state has its own set of laws that regulate probate proceedings. When a decedent owned all of their property in the same state in which they resided, their estate only requires a probate proceeding in that particular state. However, what happens if they owned property in one or more states? Their estate may require ancillary probate. Keep reading to understand when an ancillary probate is required, and what it means for family members who are dealing with the estate of a deceased loved one.
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What is Ancillary Probate?
Ancillary probate is a special type of probate proceeding that takes place in addition to the primary probate proceeding. Ancillary probate often becomes required because the probate court in the home state does not have any legal jurisdiction over property that was owned by the decedent out-of-state.
It might be helpful to define ‘ancillary’ on its own to help support the concept. According to the Dictionary, ancillary is an adjective that means “providing necessary support to the primary activities or operation of an organization, institution, industry, or system.”
The ancillary probate definition can thus be interpreted as a secondary probate that provides support to the activities of the primary probate.
Ancillary probate often applies to real estate, but can also apply to tangible property such as vehicles, boats, or airplanes that were owned (through title and registration) outside of the home state. It can also become necessary if the decedent owned rights to livestock, oil, gas, or minerals that were attached to the piece of real estate that was owned outside of the home state.
How Does Ancillary Probate Work?
When an individual passes away, their nominated Executor or other personal representative is legally responsible for filing for probate. (We explain the process and meaning of filing a petition with a local court to initiate the probate process in detail here.) This process, called domiciliary probate, should always take place in the state in which the decedent resided.
However, if the Executor discovers that the decedent owned property in other states, they must also file for probate in the state in which the property is located. This is a secondary form of probate, the ancillary probate being discussed in this guide. The Executor must perform this action in each and every other state in which the decedent owned property. This is because each state has its own set of probate laws and procedures that govern what should happen to property titled in that respective state. To do so, the Executor can first contact the probate court to begin ancillary administration. They may determine the need for assistance from a local probate or estate lawyer, especially if the court requires in-person visits.
Once the court in the home state accepts the validity of the decedent’s Will, then the courts processing the ancillary probate will usually accept the Will’s validity without any additional proof. This is also typically true for the letters testamentary that had authorized the Executor to serve. When ancillary courts accept these authorizations and documents without requiring further evidence, it can help shorten the proceeding. The ancillary probate court may refer to these as foreign Wills and foreign Executors since they were validated or issued in a different state.
When Should Ancillary Probate Be Used?
Ancillary probate should be used when someone passes away and they were the owner of property in another state outside of their primary residence. The need for ancillary probate is often discovered by the Executor of estate, when they perform an accounting of the decedent’s property and assets. If they find property titled in a different state, then they’ll determine whether ancillary probate is necessary.
Ancillary probate is often used for a decedent’s secondary home, investment property, land, or other types of real estate other than their primary residence. However, it can also apply to tangible property such as cars or boats that were titled and/or registered in other states.
Ancillary Probate Example
Let’s walk through an example to help illustrate when an estate may require ancillary probate.
Let’s say that the individual who passes away is a resident of New York. Their Executor files for probate in New York for the decedent’s New York-based property and real estate. This is the main probate.
The Executor discovered that the decedent also owned a beach house in Southern California. Because of this, they also file for an ancillary probate in California.
According to California Probate Code 12501, an ancillary probate is described as “proceedings in this state for administration of the estate of a non domiciliary decedent.” This is someone who passed away who lived in another state or country. The probate code also describes how the estates of non domiciliary decedents should be treated and distributed.
When Would a Decedent's Property Be Subject to Ancillary Probate?
Here are some scenarios in which a decedent’s property would be subject to ancillary probate:
If the decedent lived in one state but owned real property in another state.
If the decedent owned real estate as a tenant in common with another unrelated person and if that property is located in a state other than the home state.
If the decedent lived in a community property state.
If the decedent owned a life estate in real property located outside of the home state.
Can Ancillary Probate Be Avoided?
The cleanest and most straightforward way to avoid ancillary probate for your estate would be to simply avoid owning property in any state other than the state you reside in.
However, this usually isn’t a strong enough reason to avoid property ownership in other states. With that said, there are several ways you can plan in advance to avoid the need for ancillary probate:
1. Make sure your property is jointly owned: If you own property in a state other than your primary domicile state, make sure you aren’t the sole owner. If you live in a community property state, this may be automatic. If not, however, you may need to retitle the property.
2. Create a Living Trust: Assets and property owned by a living Trust can pass to your beneficiaries directly without going through probate. If you move your property into a Living Trust before you pass away, you won’t have to worry about that property going through probate or ancillary probate.
3. Use a Transfer-on-Death Deed: If your state allows it, file a transfer-on-death (TOD) deed for your property with your county clerk or records office. This allows property to pass directly to a new owner of your choosing when you pass away. The property does not have to go through probate.
Update Your Estate Plan Today
Ancillary probate is a secondary probate that can be required if you own property in states other than where you reside. The majority of your estate will go through primary probate in the state in which you live, but any property owned in other states will go through ancillary probate in the respective states in which they are titled and registered.
An Executor already has a lot on their plate when they are pushing an estate through the probate process. It can add additional stress and pressure on them when they find out they have to file for probate in additional states. Further, these additional costs can further decrease the value of your estate that can be passed on to your heirs. Although this isn’t necessarily a reason to prevent you from purchasing property in other states, it’s certainly something to consider. Know that there are estate planning tools that can help you avoid probate altogether, including ancillary probate.
The most popular tool used to avoid probate is the Living Trust. This is a fiduciary agreement that allows you to remove property from your personal estate and into a Trust. You can still manage, access, use, and enjoy property held in the Trust during your lifetime. When you pass away, the property is then passed directly to your heirs, outside of the probate process. Find out how to create your Trust today.
Or do you need help with probate? At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help. Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.
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