What is Ancillary Probate?
When someone dies and owns property in both his home state and another state, two probate processes may be required. Because the legalities of real estate falls under state law, what’s applicable in the deceased’s home state may be different in another state.
Let’s say Uncle Brian lives in Ohio and he owns a small farm. He may have also bought a home in New Jersey for summer vacations. At the time of his death, there likely will be a need for a probate process before the vacation home’s ownership is transferred to Uncle Brian’s niece, who he named in his will as the new owner.
This is applicable not only for property owned in one more state, but if Uncle Brian owned property in ten states, there is likely a need for the probate process in each of those states. This means the executor of his estate will need to coordinate legal guidance in…you guessed it – all ten states.
Fortunately, with the guidance of a qualified estate planning lawyer, Uncle Brian was able to ease what’s sure to feel like an overwhelming process. He’s put the wheels in motion, so to speak, in such a way that probate begins at home and then moves systematically to the other states, with each probate process beginning as one finishes. Of course, it’s not likely most of us have relatives who own property in ten states, but it’s not at all uncommon for people to own property in more than one state, especially if it’s a vacation home.
The good news is that once the will’s been accepted in the home state, odds are, the next state will accept it as what’s known as a “foreign will” with no further proof being required, aside from forwarding paperwork. Also, many states extend the courtesy of allowing executors a shortcut. This means the state will accept and file the home state’s proceedings with relative ease.
Of course, it’s possible that Uncle Brian could have put dynamics in place that avoid probate altogether. He could have accomplished this a few ways:
- He could have put someone else on the title with him making it a joint tenancy, tenancy by the entirety, or community property with right of survivorship
- He could have put the property in a revocable living trust
- He could have recorded a transfer-on-death deed for the property.
Odds are, Uncle Brian didn’t want to place a burden on any loved one and instead intended to leave his assets to his loved ones to serve as security, not a legal burden.
To learn more about ancillary probate and how to avoid it, contact our offices today. Our team of experienced estate planning lawyers can show you how to streamline this and other legal processes as part of your overall estate planning efforts.