Did you just find out that you’re required to file for ancillary probate in California? Even if you’re somewhat versed in the probate process and what it means for estate planning, finding out that you’re required to go through ancillary probate can often be a surprising curveball. That’s because it’s a type of special probate that only impacts a certain type of estate. Keep reading to find out what ancillary probate is, and how to file for ancillary probate in California.
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What is an ancillary probate in California?
Ancillary probate is a version of the probate process that takes place when an individual who owns property in more than one state passes away.
The California Probate Code defines ancillary probate as “proceedings in this state for administration of the estate of a non domiciliary decedent.” In other words, there is an estate administration taking place in California for a decedent who was not a California resident.
If an individual passes away and they own property in their sole name or as a tenant in common, then that property likely needs to be probated so that they can be transferred to their beneficiaries. (That is, of course, that property was transferred to a Trust.) This property must be probated in the state in which it is located.
This means that if the property is titled and registered in California, then that property must be probated in California.
But what if the decedent lived somewhere else, like in New York? This is where ancillary probate comes in. The majority of their estate (containing property and assets registered and titled in New York) will go through probate in New York. However, a secondary “ancillary” probate proceeding must take place specifically for the administration for the property that is located in California.
The next section explains this concept in further detail.
How does ancillary probate in California work?
In a manner of speaking, ancillary probate works very similarly to the traditional or “primary” probate process. It involves the filing of a petition, verifying estate assets and property, paying off taxes and debts that are owned, and then distributing remaining property to the decedent’s heirs.
The key difference between primary and ancillary probate is that the latter is a “secondary” type of probate process that is only required when an individual living in a different state passes away while owning property in California.
The decedent’s estate must first pass through the primary probate process in their domiciliary state (the state in which they resided.) However, any California-owned property then must go through a separate, ancillary probate process in California.
To begin the ancillary probate process in California, a personal representative of the estate must file a “Petition for Probate of the Non-Domiciliary Decedent’s Will.” Typically, the representative is required to file a copy of the decedent’s Will, along with the court order stating that the Will was admitted to the primary probate. They’ll also need to submit the court letters that appointed them as the Executor, Administrator, or personal representative of the estate.
Because these documents were already authenticated and/or issued by the court of the decedent’s domiciliary state, they will likely be accepted without delay or requirement of further evidence by the California probate court. Once the petition for ancillary probate is approved, the personal representative can proceed with paying any California-specific debts owed and then distributing the remaining California-owned property to the decedent’s heirs.
Ancillary probate in California example
Here is a hypothetical example of ancillary probate in California to help illustrate.
Let’s say a resident of Colorado passes away. Their nominated Executor proceeds to file their Will and a petition for probate through the Colorado state probate system. While conducting an accounting of the decedent’s estate, they find that they also owned real estate in California.
Because Colorado probate laws cannot adjudicate the administration of property titled and registered in California, the Executor must now file for ancillary probate in California.
The opposite situation can also be true. If a California resident passes away, then a primary probate in California is typically required to administer their California property. An ancillary probate in Colorado would be required for any Colorado real estate owned by the decedent at the time of their passing.
Here are two common types of ancillary scenarios in California:
Non Domiciliary Probate: The two terms non domiciliary and foreign domiciliary are used interchangeably to describe when an individual died as a resident of another state or country while owning property in California. In this case, the California probate court will require an authenticated copy of the Will and the copy of the court order admitting the Will to probate in the state or country they resided in. If the decedent lived in a foreign country, the court will require that these documents are accompanied by a certified English translation. Once these document copies are accepted, the ancillary probate process for any California-owned property can begin.
California Domiciliary Probate: This is the main probate process for an individual who passed away as a resident of California, but owned property in a different state. The personal representative of their estate must file for ancillary probate in the state where the non-California property is located.
How to file an ancillary probate in California
The process of filing an ancillary probate in California is somewhat similar to filing for primary probate. Here is an overview of the steps as follows:
1. First file for probate in the state in which the decedent resided (if required.)
2. Wait to receive any applicable court-issued letters and documents from the domiciliary state (as these are often needed to file for ancillary probate in California.) These documents include:
Authenticated copy of the court order that appointed either the Executor, Administrator, or personal representative to the estate.
Authenticated copy of court letters testamentary
Authenticated copy of the decedent’s Will (when available)
3. Visit the California probate court located in the county in which the property is located.
4. Submit a Petition for Probate of the Non-Domiciliary Decedent’s Will, along with the authenticated copies of court documents and letters listed above.
5. Pay the filing fee.
Frequently asked questions about ancillary probate in California
If you are looking into the possibility of filing for an ancillary probate in California, then you’ll likely have several questions. Even if you were familiar with the probate laws and processes in your home state, it doesn’t mean that they’ll be the same in California. Don’t worry. We’ve compiled the most frequently asked questions on the topic and answered them below.
What assets are exempt from probate in California?
The term “non-probate assets” describes a set of assets that are exempt from probate in California.
Per California probate law, any property that is not owned individually by the decedent is considered non-probate property. This can include a wide range of items, including cars, insurance policies, real estate, and financial accounts that have transfer-on-death mechanisms. These assets that are already owned jointly by another person, or are set up to transfer to another person automatically upon death, do not have to go through probate.
Here are some specific examples:
Living trust assets: A Trust is a popular form of estate planning as it helps individuals avoid probate. By transferring property and assets to a Trust, you are removing them from your personal estate. Thus, any Trust-owned property does not have to pass through probate.
Payable on Death Accounts: Life insurance policies and certain financial accounts are often set up so that they are payable on death (POD). This means that they have a designated beneficiary. When the account owner passes away, the account is automatically paid to the designated beneficiary and is excluded from the probate process.
Real estate: In most cases, real estate is jointly owned or is owned with some type of right of survivorship. When a decedent passes away, their property interest transfers automatically to their surviving spouse or owners. This is done separately outside of the probate process. Real estate only passes through probate if it has sole ownership with no right of survivorship.
How do I file an ancillary probate in California?
To file an ancillary probate in California, you must typically first file for primary probate in the decedent’s domiciliary state (the state they lived in.)
Once the submitted court documents are authenticated and court order and letters are issued, you can re-submit them to the appropriate California probate court to file a petition for ancillary probate. This secondary probate process will only administer any property titled and registered in California. Refer to the section earlier in this guide that offers a step-by-step overview of how to file an ancillary probate in California.
How much money can you have and avoid probate in California?
You can have any amount of money and still avoid probate in California. The key to understanding how to avoid probate is to know how to avoid leaving any probate assets in your estate when you pass away.
There are numerous ways to convert probate assets into non-probate assets so that they don’t have to go through probate. Here are some examples of strategies that are often used to avoid probate:
Transfer your assets and property into a Trust
Use beneficiary designations when available
Convert property such that they are jointly owned or are payable on death
Give gifts throughout your lifetime to reduce the size of your estate
How much does an estate have to be worth to go to probate in California?
If the total value of an estate at the time of death exceeds $166,250.00, then it must go through probate. Any estate that is equal or less to this amount can qualify for a simplified probate procedure called the small estate affidavit.
However, note that the size of the estate is evaluated based on the value of probate property and assets. This amount does not count non-probate assets, such as certain types of real estate, Trust assets, or assets that have payable-on-death or right of survivorship mechanisms.
Update your estate plan today
If you don’t live in California but own property in California, then be aware that your estate may require ancillary probate in California.
Ancillary probate is a secondary probate process that runs in parallel with primary probate specifically for the purpose of administering any property owned outside of your home state. Because probate laws cannot administer or adjudicate foreign property, the property must be processed by the respective court where they are located. For example, if you live in Nevada but own property in California, then an ancillary probate for the California property may be required when you pass away.
However, don’t forget that there are methods available to avoid probate altogether. With proper planning and execution, it is entirely possible to make it such that your estate won’t have to go through probate or ancillary probate. We discussed several popular strategies, including jointly-owned property, beneficiary designations, and setting up assets so that they are payable on death.
One of our strategies lies in setting up a Living Trust. This is an estate planning tool that allows you to transfer your property and assets into a fiduciary arrangement. The Trust “owns” your property and assets, meaning that they are excluded from your personal estate. However, because they are in a Living Trust, you still get to manage and access this property as if it were your own during your lifetime. When you pass away, Trust-owned property can pass directly to your loved ones without having to go through the probate process.
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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