Understanding ancillary probate and how it works

On Behalf of | Aug 21, 2023 | Probate

When someone’s estate involves assets or property in another state that is not the deceased’s state of residence, those additional assets must go through ancillary probate. The estate’s executor must manage the probate process according to the law of the state where the property is located.

The domiciliary state has no jurisdiction

Even though the estate’s executor must initiate the ancillary probate process from the domiciliary state, the latter has no official legal role. Nevertheless, state courts often cooperate with one another when an executor identifies out-of-state property and files ancillary probate. Other states often readily accept a so-called foreign will once the domiciliary state has accepted it. This acceptance helps shorten the overall probate proceeding as the executor doesn’t have to apply for another authorization. Ancillary probate can become expensive if courts do not cooperate with one another or when a person dies intestate. It can become complicated if a loved one dies intestate or without a will, as the laws governing intestate assets can differ between the states involved.

Can my heirs avoid ancillary probate?

Careful crafting of your estate plan may help your heirs avoid ancillary probate. One way to avoid probate is to put any out-of-state property in a living trust, as these assets do not have to go through probate.

What ancillary probate includes

Real estate, such as a second home, farms and businesses, must undergo the ancillary probate process. Other items can include vehicles, livestock and rights to oil, gas or other natural resources. Another way to avoid ancillary probate is to retitle property located in other states, so you and your desired heir hold the title as joint tenants with the rights of survivorship. The other individual automatically inherits the asset upon your death. However, 28 states make it easier for beneficiaries to inherit property as they allow the transfer of real property without a probate proceeding.

If you have property in other states, carefully consider who you want to inherit those assets. Remember that no designation is set in stone and may be changed anytime.