What’s worse than having to go through a formal probate court proceeding after a loved one dies? Conducting two such court proceedings—in different states.
Two probates can be required if someone lived in one state but left solely owned real estate in another. If that’s the case, there may need to be a probate in each state. That’s because real estate is always governed by the law of the state in which it’s situated, not the law of the state where the owner lives.
Example: Martha is a resident of New York; she lives there and owns a home and other property there. She also owns a small vacation home in Florida, which she and her husband bought together years ago. Now that her husband has passed on, the vacation cottage belongs to Martha alone. At her death, there will probably need to be a Florida probate court proceeding before the cottage can be transferred to Martha’s daughter, who will inherit it.
The Ancillary Probate Process
Probate in a second (or third) state is called “ancillary probate,” and for the executor of the deceased person’s estate, it means more bother and expense. The executor will probably need to find a lawyer in the other state to handle the probate.
Probate is begun first in the deceased person’s state of residence. (This is sometimes called the “domiciliary probate” because it takes place where the deceased person was domiciled—that is, made a permanent home.) Then a second probate court case (the ancillary probate) is opened where the out-of-state real estate is located.
Once a will has been accepted by the probate court in the state of residence, generally it will be accepted by another state without further proof. It’s called a “foreign will.”
Making the Process Simpler
Some states offer executors from other states (usually called “foreign executors”) a shortcut. Instead of requesting letters of authorization from a court in the second state, someone who has already been granted authority as an executor in another state can simply file the other state’s letters and a copy of the will, if any.
Example: Judith’s father nominated her, in his will, to serve as the executor of his estate. After his death, she initiates a probate proceeding in Minnesota, where her father was living at his death. But her father also owned a house in Indiana, and the Minnesota probate court has no authority over real estate in another state.
Under Indiana law, Judith can acquire all the powers and responsibilities of an Indiana executor by filing, in the probate court of the Indiana county where the house is located, a copy of the letters issued by the Minnesota probate court. She can then proceed to take control of the real estate, and sell or transfer it according to the terms of her father’s will and Indiana probate rules.
Avoiding Ancillary Probate
If you want to spare your family the expense and headache of an ancillary probate court proceeding after your death, make avoiding probate for solely-owned out-of-state real estate a priority. You’ll probably have several options, depending on state law. They may include:
- Owning the property with someone else in joint tenancy, tenancy by the entirety, or community property with right of survivorship
- Putting the property in a revocable living trust
- Recording a transfer-on-death deed for the property.