Ancillary probate is an additional, simultaneous probate process that’s required when a decedent owned real estate or tangible personal property in another state or states. The laws of a state where property is physically located typically govern what happens to that property when the owner dies—not the laws of the state where the decedent lived at the time of death.
The executor of a “domiciliary” probate proceeding—that which takes place in the decedent’s state of residence and where their will has been admitted for probate—will initiate an ancillary probate proceeding when it becomes clear that the estate includes assets that are registered or titled out of state. State courts often work cooperatively when ancillary probate becomes necessary. Other state courts are likely to accept the “foreign will” more or less automatically once the domiciliary court has done so. Ancillary courts sometimes accept authorizations provided to the executor by the domiciliary court so the executor doesn’t have to go through the dual process of applying for another authorization. This cooperation can shorten the ancillary probate proceeding.
One of the biggest drawbacks of ancillary probate is the added cost of having to administer more than one probate estate, including multiple court fees, accounting fees, and attorneys’ fees. This can happen even if the process is shortened by cooperation between the state courts, and it can deplete the financial reserves of the estate. Another drawback can occur when an estate is intestate, meaning the deceased died without a valid last will and testament. Intestacy laws determine who receives the decedent’s property when there is no will, and the laws of all 50 states and the District of Columbia vary slightly. It’s possible that the rightful heirs of an intestate estate could be different in the domiciliary state from those in the state of the ancillary probate proceeding. That would be a major complication.
Probate isn’t necessary for any property that’s placed in a living trust, regardless of where that property is located. You can allow property located in your state to pass to your beneficiaries through the probate of your will, then simply title your out-of-state proceeds in the name of your trust. No ancillary probate would be required for those assets. You might also consider retitling property that’s located in other states so you and your desired beneficiary jointly hold ownership with rights of survivorship. For example, you can have a new deed created in which you hold title as joint tenants with rights of survivorship if you own a vacation home in Utah that you’d like to leave to your son or daughter. They would automatically inherit the property at your death without the necessity of probate. Twenty-eight states recognize special beneficiary deeds that allow real property to be transferred at your death without a probate proceeding. Beneficiaries named on the deeds can take title by recording an affidavit with the county clerk
Probate in a second (or third) state is called “ancillary probate,” and for the executor of the deceased person’s estate, it means more bother and expense. The executor will probably need to find a lawyer in the other state to handle the probate. Probate begun first in the deceased person’s state of residence. (This is sometimes called the “domiciliary probate” because it takes place where the deceased person was domiciled—that is, made a permanent home.) Then a second probate court case (the ancillary probate) is opened where the out-of-state real estate is located. Once a will has been accepted by the probate court in the state of residence, generally it will be accepted by another state without further proof. It’s called a “foreign will.”
Some states offer executors from other states (usually called “foreign executors”) a shortcut. Instead of requesting letters of authorization from a court in the second state, someone who has already been granted authority as an executor in another state can simply file the other state’s letters and a copy of the will, if any.
If you want to spare your family the expense and headache of an ancillary probate court proceeding after your death, make avoiding probate for solely-owned out-of-state real estate a priority. You’ll probably have several options, depending on state law. They may include:
Probate usually works like this: After your death, the person you named in your will as executor or, if you die without a will, the person appointed by a judge—files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you’ve left. Then, relatives and creditors are officially notified of your death.
Your executor must find, secure, and manage your assets during the probate process, which commonly takes a few months to a year. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities, or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them. In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on. Then, eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will. Finally, your property will be transferred to its new owners.
No. Most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In Utah, for example, you can pass up to $100,000 of property without probate, and there’s a simple transfer procedure for any property left to a surviving spouse. In addition, property that passes outside of your will—say, through joint tenancy or a living trust—is not subject to probate.
In most circumstances, the executor named in the will takes this job. If there isn’t any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person’s assets. If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can’t easily be paid from the property you leave. Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health, and your wealth. If you’re young and in good health, adopting a complex probate-avoidance plan now may mean you’ll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate because your property may qualify for your state’s simplified probate procedure.
If you do not have a Will, everything you own will go through probate court. The following will always go through the process, regardless of what your Estate Planning states.
Certain assets and property will not go through probate. By properly planning, you can help avoid probate for any of the following.
If you do not have a Will, everything you own will go through probate court. The following will always go through the process, regardless of what your Estate Planning states.
