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What is an ancillary probate proceeding in New York?

What is ancillary probate? Learn more about ancillary probate proceedings and how they work in New York with this guide.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

Ancillary probate is a type of secondary probate that is conducted for any estate assets and property that are titled and registered in a state other than the one in which the decedent resided. Each state has its own set of probate and ancillary probate laws and proceedings. If the estate in question owns any property in the state of New York, then an ancillary proceeding will likely need to be filed there. Keep reading to find out about ancillary probate proceedings and how they work in New York.

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What is an ancillary probate proceeding?

According to New York State law, if a personal representative filed for probate in a foreign jurisdiction (other state) but requires access to assets located in New York, then they must file for an ancillary probate proceeding in New York specifically.

Each state has its own set of probate laws that regulate how property should be administered in the case of an individual’s death. This means that each state probate court can only administer property (real or personal) if it was titled and registered in that state.

When an individual passes away, their estate typically undergoes probate in the state in which they resided. 

However, if they owned any property outside of their domiciliary state, then a personal representative must file for a secondary probate in the respective state in which that property is titled and registered. This secondary probate is what is known as an ancillary probate proceeding.

How does an ancillary proceeding work in New York? 

New York State law provides that a personal representative of an estate filing for probate in New York must be a New York resident. This means that in order to file an ancillary proceeding in New York, you must first appoint a New York resident as your co-representative. (Assuming you do not live in New York.) 

Together, you would file a petition for an ancillary proceeding with the New York Surrogate’s Court. In this petition, you must identify the assets that are located in the state, as well as list the beneficiaries of the decedent. 

Along with the petition, you must also file an authentic copy of the Will, along with the court order or decree admitting the Will to probate. Also include the letters issued by the court appointing you as the personal representative of the estate (Executor). If your documents happen to be in a foreign language issued by a foreign nation court, then you must also provide a certified English translation of the documents. 

Upon reviewing the documents, the court will likely issue ancillary letters to the personal representative. They will often do so without requiring further evidence if they determine that all the documents submitted are valid. Once these letters are issued, the Executor can proceed with their duty of collecting the estate assets, paying for any estate debts, and making distributions to beneficiaries. 

Frequently asked questions about ancillary probate proceedings in New York

Now that we have a general overview of how an ancillary proceeding works in New York, here are the answers to some of the most frequently asked questions.

How long does ancillary probate take in New York?

Ancillary probate generally takes less time than the primary probate case. If the estate is on the smaller side, the administration can go even more quickly. However, alike all probate cases, the exact timeline of ancillary probate is determined by the unique circumstances of the estate.

Before you can start the ancillary proceeding in New York, the decedent’s Will must first be filed and validated in the state in which they resided. Once primary proceedings begin, you can then submit a petition for ancillary probate in the state of New York. When submitting already-authenticated copies of the Will and court orders, the New York probate court will likely also accept the documents without requiring further evidence. This can help speed up the process.

What are the steps of probate in NY?

The probate process can vary from state to state. The New York probate laws are described in the Surrogate’s Court Procedure Act and the Estate Powers and Trust Law

In brief, here are the general steps of New York probate:

1. File for probate: The probate process (whether primary or ancillary) cannot begin unless a personal representative initiates it. This is done when a personal representative of an estate, such as the nominated Executor or family member of the deceased, files a petition for probate. They must also file the original Will if it is available.

2. Send notice: State law requires that a notice is sent to any individual or entity with vested interest in an estate. Heirs, creditors, and beneficiaries all have a legal right to be informed that an estate has entered probate.

3. Create an inventory: The Executor or Administrator must create an inventory of the decedent’s property, assets, and belongings. They must also have them appraised as necessary, although the court typically accepts an estimated value at first.

4. Pay debts and taxes: A standard practice of probate is resolving any debts or taxes that are owed. This might include rent, mortgage payments, insurance bills, taxes, credit card balances, and any other types of applicable debts. Assets are sometimes sold to help cover the cost if the estate doesn’t have enough liquid assets.

5. Distribute remaining property: Last but not least, any remaining assets are distributed to the heirs of the estate. This is done in line with either the instructions left behind in the decedent’s Will or New York intestacy laws. 

How much does an estate have to be worth to go to probate in New York?

In general, it’s safer to assume that an estate does need to go through probate in New York. This is because not putting an estate through probate when it should is illegal and can have serious financial and legal consequences.

However, there are certain exceptions when an estate does not have to go through the full probate process. In New York, an estate must go through the full probate process when it is valued over $30,000. If it is valued under $30,000 then it can qualify for a “small estate proceeding,” which is a speedier version of probate. 

Do you need a lawyer for probate in NY?

New York law does not require an estate to hire a probate attorney. 

Here are some conditions when a probate process can be completed on your own:

  • All the heirs are compliant and can be located

  • The Will is not contested

  • Appraisals are not required

  • Debts and taxes are easy to resolve

However, working with an attorney can be helpful in certain circumstances. For instance, perhaps you need to file for an ancillary probate in a different state. Or, the Will is complex and/or contested. 

If you’re not sure if you’d like to take the “do-it-yourself” approach to probate or work with an attorney, why not go with something in the middle? Trust & Will’s Probate assists individuals so that they can navigate the probate process more easily and with more confidence. There are multiple service tiers, so you can opt to upgrade for some additional support from a probate specialist or even work with an affordable probate attorney who will handle probate for you!

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An ancillary proceeding is similar to the traditional probate process. It is typically required when a primary probate is already filed in the state in which the decedent resided, but the estate also owns some property and assets in a different state. Because property is titled and registered on a state-by-state basis, a secondary probate must be filed in that respective state such that the property in question can be legally administered. 

Many estate planning-savvy individuals spend time planning for probate, including methods that can be used to avoid it. However, it’s easy to forget that some estates own property outside of their domiciliary state. In this case, ancillary probate is required in the state in which the property is titled and registered. If the estate happens to own property in the State of New York, remember to refer to this guide.

Education around ancillary probate can also highlight just how complex and burdensome probate as a whole really is. If you’re interested in avoiding probate altogether, consider transferring your assets and property into a Trust. Trust & Will can help you with that! Learn how you can protect yourself from probate (including ancillary probate) by setting up a Trust-based estate plan today!

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