Ancillary Probate: Probate in Another State
If you are the owner of real estate in more than one state, more than one probate proceeding might be required.
Two probates might be required when someone lived in one state but left individually owned real estate in a different one. When that’s the case, there might need to be probate proceedings in each state. Since real estate is always regulated by the law of the state in which the property is located, not by the laws of the state in which the owner resides.
For instance: Martha is a resident of Rhode Island; she resides there and also is the owner of a home and other property there. She also owns a little vacation bungalow in Florida, in which she and her husband purchased together years ago. Because her husband has passed away, the vacation bungalow solely belongs to Martha. Following her passing, there is going to probably require to be Florida probate court proceedings prior to the bungalow being transferred to Martha’s son, that is going to inherit it.
The Ancillary Probate Process
Probate in a 2nd (or possibly 3rd) state is known as “ancillary probate,” and for the executor of the deceased individual’s estate, it means more hassle and cost. The executor is going to probably need to hire a lawyer in the other state to manage the probate.
Probate starts 1st in the decedent individual’s state of residence. (This is occasionally referred to as the “domiciliary probate” since it occurs where the decedent was domiciled—that is, made a permanent residence.) Following that, a 2nd probate court case (the ancillary one) is opened in which the out of state property is located.
After a will has been approved by the probate court in the state of residency, usually it is going to be approved by another state without added proof. It’s known as a “foreign will.”
Foreign Executors
Many states provide executors from other states (typically known as “foreign executors”) with a short cut. Instead of asking for letters of authorization from a court in the 2nd state, someone that has presently been granted power as an executor in a different state can just file the other state’s documentation and a copy of the will, if there is one.
For instance: Stephanie’s father appointed her, through his will, to serve as the executor of his estate. Following his passing, she begins probate proceedings in Indiana, in which her late father was living at the time of his passing. But her father also was owner of a home in Minnesota, and the Indiana probate court has no control over property in a different state.
Through Minnesota law, Stephanie can gain all the authority and duties of a Minnesota executor by filing in the Minnesota county probate court in which the property is located, in addition to a copy of the documents released by the Indiana probate court. She then can move forward and take control of the property and sell or transfer it in accordance with the conditions of her father’s will and the guidelines of the Minnesota probate court.
Avoiding Ancillary Probate
When you wish to spare your family the cost and stress of an ancillary probate court proceedings following your passing, make avoiding probate for exclusively-owned out-of-state real estate precedence. You are going to probably have multiple options, subject to state law. They might include:
- Ownership of the property with another individual in joint tenancy, community property with right of survivorship, or tenancy by the entirety
- Documenting a transfer on death deed for the property.
- Keeping the property in a revocable living trust
Source:
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Mary Randolph, J. D. (2014, October 10). Ancillary probate: Probate in another State. www.nolo.com. Retrieved May 17, 2022, from https://www.nolo.com/legal-encyclopedia/ancillary-probate-probate-another-state.html
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