Ancillary probate

Ancillary probate
Primary topic
Related topics
Methods and techniques

Ancillary probate is a process run alongside domicile probate, to prove the title to the real property, which is located in another jurisdiction other than the home state, where the decedent lived.

For example, if a person lived outside of California, but owned some property in the California state, after his death a domicile probate will be run in his home state, and ancillary probate will be required to run in California, which will focus on the property located there[1]. This probate may be required to be run in every state the decedent owned a property.

Jurisdiction limits[edit]

Ancillary probate, a secondary court proceeding, is also known as ancillary administration. It is necessary to run, because the court in the county where a person lived, has no jurisdiction over the real property, which is located in other states. A state that is not home state for a decedent is often called "foreign state"[2].

When the owner dies leaving properties in more than one state, separate domiciliary and ancillary probates are run, and furthermore, every property is administered under the law and regulations present in the state where each of them are located. Very often the court appoints someone called an ancillary administrator, who handles administration in the states, where decedent's properties are located. In some states, a personal representative of the domiciliary state is allowed to become the administrator. Sometimes an exception can be made, where a family member who is a nonresident, can be appointed as the administrator, but the court must always make sure to protect the rights of the creditors of decedent[3].

Cost of an ancillary probate[edit]

There are many variables that can escalate the cost of the whole process[4]:

  • Ancillary probate may be required to be run in every state, where decedent's properties are located
  • Every state may require appointment of a personal representative and a local counsel
  • With the above example, attorney's fees and additional executor's commissions may rise
  • The appointed administrator must give a bond, to insure against mismanagement
  • If the appointed executor is an individual rather than a bank, that person also has to give a bond, unless the decedent's will says otherwise

R.H. Sitkoff and J. Dukeminier wrote in their book that: "Bond is usually obtained from an insurance company by paying a premium (such as $500 for $100,000 bond), which will ultimately be paid out of the estate."[5] Very often, a person appointed as the executor is a trusted family member, thus decedent's will tend to waiver the bond requirement.

Footnotes[edit]

  1. Nissley J., Fialco L., 2018, Ch. 2
  2. Hower D.R., Walter J., Wright E., 2016, p. 250
  3. Hower D.R., Walter J., Wright E., 2016, p. 250
  4. Sitkoff R.H., Dukeminier J., 2017, p. 44
  5. Sitkoff R.H., Dukeminier J., 2017, p. 45

References[edit]

Author: Jakub Urban