Ancillary Probate: Probate in Another State

Going through a formal probate court proceeding after a loved one dies can be difficult. It can be even worse to endure two probate proceedings in different states.

Real estate is subject to the probate laws in the state where it's located, and each state has its own probate laws. So, if you own property in two or more states when you die, your estate likely will need probate in more than one state.

What Is Ancillary Probate?

When a person dies, probate proceedings—if any—occur in the state where the deceased person had a permanent residence. If the deceased person owned real estate in another state, there might need to be a probate proceeding in each state. Probate proceedings for property owned in a second (or third) state is called "ancillary probate."

For the executor of the deceased person's estate, ancillary probate means more time and trouble. Ancillary probate also will create more expenses for the estate. For instance, the executor will probably need to find a lawyer in the second state to help handle probate. The executor will use the estate's money to hire the lawyer, and that means there will be less money left for the inheritors of the estate.

Ancillary probate proceedings might be required if someone lived in one state but left solely owned real estate in another. (Depending on state law, ancillary probate also might be needed for types of property besides real estate.) Ancillary probate will be needed because real estate is always governed by the law of the state where it's located, 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.

How Ancillary Probate Works

When a person dies, probate first is opened 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, where their permanent residence was.) The probate court will appoint a person as executor (or personal representative) and provide that person with "letters of authority" to handle the estate.

If the deceased person owned property in another state, then the executor will need to open probate in the court where the out-of-state real estate is located. Depending on the state's ancillary probate laws, the executor might need to obtain new letters of authority from the court.

After the court in the domiciliary probate proceeding accepts the deceased person's will—if there is one—the court in the ancillary probate proceeding generally will accept it without requiring further proof that it's valid. A will from a domiciliary proceeding that's accepted in an ancillary proceeding is called a "foreign will." (If the deceased person didn't have a will, ancillary probate can be more complicated. See "Ancillary Probate Disadvantages" below.)

The court where the property is located then uses the will—or intestate succession laws if there's no will—to determine who should receive the property. How long ancillary probate takes depends on different factors, including state law, how complicated the estate is, and local court rules.

Some states offer executors from other states (usually called "foreign executors") a shortcut for ancillary probate. Instead of requiring foreign executors to obtain letters of authority for ancillary probate, these states allow foreign executors to simply file the other states' letters of authority and a copy of the will, if there is one.

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 of authority 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.

Ancillary Probate Disadvantages

One probate proceeding can be expensive. Having an ancillary probate proceeding will require extra time and expense, like additional court fees and hiring attorneys in two states. So it's best to try to avoid ancillary probate (discussed below).

If a deceased person didn't have a will, ancillary probate proceedings can be even more complicated. The court in the ancillary proceeding won't have a will to easily admit to probate—and won't have an executor selected by the deceased person.

If the deceased person didn't have a will, the court also will need to follow its state's intestate succession laws to determine who gets property. States can have different intestate succession laws. So the ancillary probate proceedings could give the real estate to different relatives than those who received property in the domiciliary proceedings.

How to Avoid Ancillary Probate

If you want to spare your family the expense and headache of an ancillary probate court proceeding, make avoiding probate for solely-owned out-of-state real estate a priority. You'll probably have several options, depending on state law. They might 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, or
• recording a transfer-on-death deed for the property.

It's often a good idea to speak with an estate planning attorney if you own property in multiple states to make sure you choose the best probate-avoidance option for your property.