Are you the sole owner of any real or tangible personal property in California, but primarily live in another state? Examples include real estate, land, boats, vehicles, livestock, oil, gas, and mineral rights. If yes, then your estate may be subject to ancillary probate in California. Keep reading to find out what California ancillary probate is, when it’s required, and how to avoid it.
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How does ancillary probate work in California?
Ancillary probate is a secondary probate process that may be required when a deceased individual owned property in a state other than the one in which they primarily lived. Examples of property that often go through ancillary probate include real estate, land, vehicles, boats, oil, gas, mineral rights, and livestock. Governance regarding real and tangible personal property lies with the state, and therefore must be adjudicated by that state. This is true in any state, including California.
In California, an ancillary probate comes into play when a non-resident passes away while owning property in California. This only applies if the property must be probated before it can be distributed. We’ll go over when ancillary probate is required and not required shortly.
Let’s go over an example to help illustrate. For all intents and purposes, Jim is a domiciliary (resident) of New York. It’s where he lives, it’s where he works, and it’s where he is registered to vote. Jim retires, and as a retirement gift to himself, he buys himself a beach house in Malibu, California. He enjoys vacationing there every summer. After many happy years, he passes away and leaves behind a Will with instructions regarding how his property should be distributed amongst his loved ones. His family members realize that his California property can’t be probated in New York. Therefore, they must make sure that it goes through a secondary, ancillary probate in California so that it can be passed on to his named beneficiary.
If someone like Jim were to pass away, then a personal representative must file a petition for probate in Jim’s home state. There, the probate court will verify and admit Jim’s Will, as well as appoint his estate’s Executor. Once the probate process has begun in Jim’s domiciliary state, then the Executor can move forward with filing for ancillary probate in California. Here, the California probate court will more or less automatically accept the Will and Executor appointment since they have already been approved by another probate court. The ancillary probate proceedings will oversee the matter of distributing any of Jim’s property located or titled in California only. After the fact, then Jim’s estate can be settled in his home state.
When is ancillary probate required in California?
In California, ancillary probate is required when a non-resident passes away with property in California exceeding the value of $166,250 (subject to change.) According to the California Probate Code, this is the threshold for an estate to be considered a small estate and avoid probate.
Continuing on from the example above, if Jim’s property in Malibu exceeds the small estate threshold (which it likely does) then an ancillary probate in California would be required in order to handle the Malibu property. Again, this is because New York does not have jurisdiction over real estate in California. Instead, the California probate court will provide governance regarding the matter of distributing Jim’s Malibu property through ancillary administration.
There are several exceptions to ancillary probate.
First, ancillary probate may not be required if the total value of real property does not exceed the small estate threshold. If this were the case, then a small estate affidavit may suffice.
Second, a property may not be probated if its ownership structure allows it to pass directly to a beneficiary or joint owner outside of the probate process. For example, Jim could have owned the property jointly with his partner. Thus, his partner automatically absorbs Jim’s share of the property title when Jim passes away and becomes the sole owner. The property does not have to go through probate.
In another case, Jim could have set up a Revocable Living Trust during his lifetime and then transferred the deed to the Malibu property to the Trust. Because the Trust and the Trustee are the owners of the property, it does not belong to Jim’s estate and thus can be distributed to Jim’s beneficiaries outside of the probate process.
Last but not least, some states allow the use of Transfer-on-Death (TOD) deeds to transfer real estate to beneficiaries upon death, outside of the probate process. California began allowing this convenient option in 2016.
Who can open an ancillary probate in California?
California Probate Code 12510 states, “any interested person, or a sister state or foreign nation personal representative, may commence an ancillary administration by petitioning the California probate court.” This means that any individual or entity who might have a claim to a deceased person’s estate may file a petition. The rule also applies to any personal representative of an estate who was appointed in another state or country outside of California. These parties can file a petition to probate the Will of a non domiciliary decedent and/or appoint a local representative.
Who can serve as ancillary probate administrator in California?
California Probate Codes 12513 and 12530 define who can serve as an ancillary probate administrator in California.
If an individual passes away while living in a state other than California, then a personal representative who was appointed by their home state’s court (such as Executor or Administrator) has priority over any other individuals to file for ancillary probate in California. That is, unless the decedent’s Will nominates a different person specifically to serve as personal representative in California. Further, the Executor can nominate another individual to serve as personal representative in California if they cannot or do not wish to take on the additional duty.
Once appointed, a personal administrator has the same duties between the primary probate and ancillary probate proceedings. This includes, but is not limited to:
Opening the decedent’s estate administration
Inventory and appraisal of property
Fielding creditor claims
Managing the estate and its accounts
Payment of debts and compensation
Distributing assets and property to beneficiaries
Settling and closing the estate
Learn more about ancillary probate & how to avoid it
If you or a loved one currently own property in the Golden State, but do not live there as your primary domicile, it is time to start thinking about the possibility of ancillary probate in California. The probate process is time consuming and costly in and of itself, and adding yet another probate process on top of it can be quite a burden.
Luckily, there are many ways to avoid probate altogether. This guide suggested several ideas, including transferring property to a revocable living Trust. Check out our Trust-based Estate Plan, which is affordable and easy to set up! By taking action now, you can save your loved ones from the headache of probate in the future.
To understand more about the process, be sure to check out our What is Ancillary Probate guide.
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