Do you know the difference between a Foreign Domiciliary & California Domiciliary? If you are planning your estate and are either a resident of California or own property in California, this applies to you. Keep reading to find out the difference between these two terms and how they relate to ancillary probate in California.
What is an Ancillary Probate in California?
A California ancillary probate is a type of probate proceeding that takes place when a person dies while owning property in California.
If a person passes away and owns property solely in their name, or as a tenant in common, then there’s a probable chance that those assets will need to go through the probate process.
In a nutshell, probate is a legal proceeding that removes property out of a decedent’s estate and transfers it to their beneficiaries. There are certain exceptions to probate, such as when property is held in a Trust. (Learn more about Trusts and why they’re a popular tool used to avoid probate here.) Probate takes place in the state and county in which the decedent resided.
However, if a decedent owned any real estate in more than one state, then their estate will likely require ancillary probate. The location of any real property that they owned matters. This is because each state has its own set of laws that govern how real property should be transferred.
If a non-California resident who owned property in California passes away, then that specific piece of property may need to go through ancillary probate in California before it can be passed to their beneficiary.
Read more about this process in What is Ancillary Probate in California?
Types of Ancillary Probate in California
How do you determine if an estate requires ancillary probate in California?
The first step is to determine if probate will be necessary, and if yes, where probate should be filed. Where did the decedent live? This is typically the state and county in which the decedent retained their primary residence, received mail, and was registered to vote. You can also check where they obtained their driver’s license. Answering these questions can be helpful clues to determine where you should file for probate.
Once you know the state in which probate should be filed, now you can explore whether ancillary probate is required. At the time of death, did the decedent own any property outside of their primary residence state? Any real estate must be probated in the state in which it is located. If the decedent owned any property outside of the residence state, then an ancillary probate may be required.
Two common types of ancillary probate include foreign domiciliary and California domiciliary.
The term Foreign Domiciliary, or Non Domiciliary, refers to an individual who held their residence in another state, but owned property in California at the time they passed away. Vacation and investment properties are common examples.
This property likely must pass through an ancillary probate in California before it can be transferred to the decedent’s beneficiary or beneficiaries.
A representative of the estate must file for the ancillary probate process in California after they have already filed for primary probate in the state of primary residence. The ancillary probate will handle the matter of probating the real property located in California only. Any other assets and property will be probated in the primary probate.
The term California Domiciliary is used to describe when a California resident owns property outside of the state at the time they pass away. A primary probate process will take place in California, but an ancillary probate will need to be filed in the state where the property in question is located.
Similar to the foreign domiciliary process noted earlier, a personal representative of the estate will first need to file for primary probate in California. Once the primary probate is underway, they can then file for ancillary probate in the state in which the real property is located.
How to Establish Residency in California
Let us say that you own real estate in California, and you determine that it would be beneficial to establish California residence for estate planning and tax purposes. This is a hypothetical scenario; all personal decisions regarding establishing residency should be made based on your personal circumstances.
According to the California Department of Motor Vehicles, California residency can be established by satisfying the following:
Obtain a California Driver License within 10 days of becoming a California resident.
Registering and voting in a California election.
Have a registered California address to which your mail is sent.
Pay resident tuition (if you are an enrolled student).
File for a homeowner’s property tax exemption.
File for any other privilege or benefit that typically is not extended to nonresidents.
What qualifies you as a California resident?
The California Revenue & Tax Code defined the meaning of California residency in 1935. According to Cal. Rev. & Tax. Code § 17014(a), a California “resident” describes an individual who is either:
In California for other than a purpose that is “temporary” or “transitory.”
Domiciled in California, but is currently outside of California for a “temporary or transitory purpose.”
Some states consider the terms resident and domicile the same. However, California does not and draws a distinction between the two.
In California, a domicile is defined as the place you establish both yourself and your family. It can not be just for a special purpose or temporary period of time. You must have the intention of making California your “true, fixed, permanent home and principal establishment.”
Based on California law, a resident can only have one domicile at once. To change to a new domicile, you must abandon your old domicile, and physically move to and live in the new domicile. Further, your actions must demonstrate your intention to stay in this new domicile either permanently or indefinitely.
In other words, if you wish to qualify your estate for primary probate in California, simply following the steps to establish residency may not suffice. Rather, you must be able to reasonably prove your domiciliary intent. You cannot attempt to maintain residency in any other state, even if that state may have different laws.
Update Your Estate Plan Today
This guide defined the difference between a Foreign Domiciliary & California Domiciliary, and what it means for file for ancillary probate in California.
If you own property in California but have residency in another state, then you are a Foreign Domiciliary. Primary probate will take place in the state in which you lived, but ancillary probate will need to be filed in California to probate any applicable property located in California.
Conversely, you are a California Domiciliary if you lived in California but own real estate outside of the state. When you pass away, a personal representative of your estate must file for primary probate in California, but they must also file for ancillary probate in the estate in which the non-California property is located.
This guide brings to light just how complicated the probate process can be. Worrying about just one probate process is already a handful, it can cause quite the headache when you discover that your estate might have to pass through multiple probate processes. More than anything, this serves as a great reminder to get your affairs in order.
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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