What Is Ancillary Probate?

When dealing with the estate of a deceased person, the term “ancillary probate” often comes up, especially if the decedent owned property in more than one state. Understanding ancillary probate is crucial for ensuring that the estate is settled smoothly and efficiently. Here’s everything you need to know about ancillary probate:

What Is Ancillary Probate?

Ancillary probate is a secondary probate process that occurs when a deceased person owned real estate or other significant property in a state different from where they resided. The primary probate takes place in the decedent’s home state (domiciliary state), while ancillary probate is conducted in the state where the additional property is located.

Why Is Ancillary Probate Necessary?

When someone passes away owning property in multiple states, each state has jurisdiction over the property within its borders. Ancillary probate is necessary to:

• Legally Transfer Ownership: Ensure the legal transfer of real estate or significant assets located out of state to the rightful heirs or beneficiaries.
• Settle Debts and Taxes: Address any outstanding debts or state-specific taxes related to the out-of-state property.
• Clear Title Issues: Resolve any potential title issues to avoid complications in future property transactions.

The Ancillary Probate Process

1. Initiating Primary Probate:

   • The first step is to initiate the primary probate process in the decedent’s home state. This involves validating the will (if there is one), appointing an executor, and beginning the process of settling the estate.

2. Filing for Ancillary Probate:

   • Once the primary probate is underway, the executor or personal representative must file for ancillary probate in the state where the additional property is located. This typically requires submitting authenticated copies of the will, death certificate, and the primary probate court’s order.

3. Appointing an Ancillary Executor:

   • The court in the ancillary state will appoint an ancillary executor or personal representative to handle the out-of-state property. This person may be the same as the primary executor or a different individual.

4. Settling the Ancillary Estate:

   • The ancillary executor is responsible for managing the out-of-state property, which includes paying any state-specific debts and taxes, resolving claims, and ultimately transferring the property to the beneficiaries.

5. Closing Ancillary Probate:

   • Once all obligations are met, the ancillary probate is closed, and the property is transferred according to the terms of the will or state intestacy laws.

Potential Challenges of Ancillary Probate

• Time and Cost: Ancillary probate can add time and expense to the overall probate process since it involves dealing with courts in multiple states.
• Legal Complexity: Each state has its own probate laws and procedures, making it essential to work with attorneys familiar with the laws in both the domiciliary and ancillary states.
• Coordination: Effective coordination between the primary and ancillary executors is crucial to ensure the estate is settled smoothly.

How to Avoid Ancillary Probate

1. Revocable Living Trusts: Transferring property into a revocable living trust can help avoid the need for probate altogether, including ancillary probate.
2. Joint Ownership: Owning property jointly with rights of survivorship ensures that the property passes directly to the co-owner upon death, bypassing probate.
3. Transfer-on-Death Deeds: Some states allow transfer-on-death deeds for real estate, which automatically transfer property to a named beneficiary without probate.