Ancillary probate
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
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
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.
Examples of Ancillary probate
- When a decedent owns real estate in multiple states, ancillary probate is necessary to transfer title to the real property located in other states. For example, if a decedent owns a home in Florida and a condo in Arizona, ancillary probate would need to be opened in Arizona to transfer title to the condo.
- If a decedent owned a business in a state other than the one in which they lived, ancillary probate may be necessary to transfer the title to the business. For example, if a decedent lived in California but owned a business in Texas, ancillary probate would need to be opened in Texas to transfer title to the business.
- If a decedent owned a vacation home in another state, ancillary probate may be necessary to transfer title to the property. For example, if a decedent lived in New York but owned a vacation home in Florida, ancillary probate would need to be opened in Florida to transfer title to the vacation home.
- If a decedent owned a boat or a motor vehicle in another state, ancillary probate may be necessary to transfer title to the property. For example, if a decedent lived in Georgia but owned a boat in Alabama, ancillary probate would need to be opened in Alabama to transfer title to the boat.
Advantages of Ancillary probate
Ancillary probate can provide a number of advantages, such as:
- Ensuring that all real property owned by the deceased is distributed according to their wishes. Ancillary probate allows for the transfer of title to real estate in other states, which may not have been otherwise possible through domiciliary probate.
- Ancillary probate can help ensure that all debts and taxes due from the estate are accounted for, as well as any other claims against the estate.
- Ancillary probate may be more cost-effective than domiciliary probate, as it generally requires less court time, paperwork, and legal fees.
- Ancillary probate can also help to protect the rights of heirs who live in other states, as they may not be familiar with the laws of the decedent's home state.
- Ancillary probate can help to streamline the probate process and make the administration of the estate simpler.
Limitations of Ancillary probate
Ancillary probate is a process to prove the title to the real property, which is located in another jurisdiction other than the home state, where the decedent lived. The limitations of ancillary probate include:
- Ancillary probate is not required for all types of real estate that a decedent may own. Only those properties located in another jurisdiction are subject to ancillary probate.
- It can be expensive, since ancillary probate requires paying fees to the court and attorney’s fees in addition to the costs of probating the estate in the domicile state.
- It can be time-consuming since the process can take months or even years to complete.
- It can be complicated since the laws of the other jurisdiction and the domicile state must be taken into consideration.
- It is subject to the applicable statutes of limitations, and any claim not filed in time may be barred.
- It can be limited in scope since the proceedings are limited to the real property located in the other jurisdiction. Other assets, such as bank accounts and personal property, cannot be distributed through ancillary probate.
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. Other approaches related to Ancillary probate include:
- Collection of the Decedent’s Assets - This is the process of locating, protecting, and collecting all of the decedent’s assets, including any property located in other states.
- Payment of the Decedent’s Debts and Expenses - This is the process of paying all of the decedent’s debts and expenses, including any taxes and other liabilities owed to other states.
- Distribution of the Decedent’s Assets - This is the process of distributing the decedent’s assets to the beneficiaries according to the terms of the will or state law.
- Ancillary Probate Administration - This is the process of filing the necessary paperwork in other states to prove the title to the real property located in those states.
In summary, Ancillary probate is a process run alongside domicile probate to prove the title to the real property located in other states. It involves the collection of the decedent’s assets, payment of the decedent’s debts and expenses, distribution of the decedent’s assets, and ancillary probate administration.
Footnotes
| Ancillary probate — recommended articles |
| Absolute assignment — Consent order — Collateral assignment — Special power of attorney — Fixed and floating charge — Mortgage deed — Prepaid rent — Indemnity bond — Spendthrift clause |
References
- Christensen H. (2013), International Estate Planning, LexisNexis
- Hower D.R., Walter J., Wright E. (2016), Wills, Trusts, and Estate Administration, Cengage Learning
- Nissley J., Fialco L. (2018), How to Probate an Estate in California, Nolo
- Sitkoff R.H., Dukeminier J. (2017), Wills, Trusts, and Estates, Tenth Edition, Wolters Kluwer Law & Business
Author: Jakub Urban
