Ancillary probate is an additional probate proceeding resulting from a decedent owning assets or other estate properties in another state or states. Typically, a primary probate proceeding is necessary to before the decedent’s assets can be shared. However, since not all the decedent properties are in the state he lived but in another state then a secondary probate becomes necessary. The laws of the State where the assets are located dictates what happens to the assets when the owner dies or wish to transfer to beneficiaries. Contrary to wrong notions, the state where the asset owner lives at time of death does not dictate what happens to assets located in other states.
An additional probate proceeding thus becomes necessary. This mean new challenges and longer probate process cannot be avoided. Also, this poses more challenges to making estate plans for properties located in other state as well as administrators and executors that would be involved in such estate plan.
How does Ancillary probate work?
Just like every estate settlement, probate proceedings is administered and the necessary steps will be followed to probate the decedent’ estate documents. During the usual or primary probate proceedings of a decedent’s Will, the estate executor placed in charge of the estate will initiate an ancillary probate proceedings. The executor before this period would have been notified of the decedent’s assets located in other states.
Note; one of the executor’s to priority is identifying and gathering all property owned by the decedent. By doing this, he would be able to discover and make plans for the assets owned by the decedent but are located in other states.
State courts also cooperate when ancillary probate becomes required. Other states would certainly recognize a “foreign” will if the domiciliary court has done so. Ancillary courts often accept permits issued by the domiciliary court to the executor so that the executor does not have to go through the dual process of applying for approval there.
Drawback of ancillary probate
- Increased time of probate
Typically, probate duration varies depending on the complexity of the estate document and the estate properties involved. However, with inclusion of ancillary probate, probate proceedings is further lengthened. The reason being the executor will need to initiate another proceeding for the ancillary probate, while the primary proceedings would still be on going. The dual phase of these proceedings could prove stressful for parties involved. Both primary and the ancillary probate proceedings must both come to an end before the estate can be administered to its beneficiaries.
- Increased cost
The cost of one probate; primary probate could be overwhelming. With the inclusion of a secondary probate it can only get less good. The added cost of having to administer more than one probate estate, including multiple court fees, accounting fees, and attorneys’ fees, is one of the biggest drawbacks of ancillary probate. Even if the process is shortened somewhat by cooperation between the state courts, where the decedent resided and where he owned additional property, this can happen and the financial reserves of the estate can be depleted.
- Confusion among estate beneficiaries
Situation where a decedent dies intestate without a valid Will or estate document poses even more serious problem. Intestacy laws Intestacy laws determine who receives the decedent’s property when there is no valid will. However, these laws different from state to state. It is possible that the beneficiaries of an estate according to the intestate laws of one state to be different from the state of ancillary probate proceedings. This would prove a major problem during probate and settlement of the estate.
Can I avoid Ancillary Probate?
One major way to avoid the troubles of probate is by placing your assets in a living trust document. These assets regardless of what state they are located will not need probate before being given to named beneficiary. You can allow property located in your state to pass to your beneficiaries through the probate of your will, and then those located in other state can be named in a trust. As such no ancillary probate would be required for these assets before the beneficiaries gets them.
Also, you might also consider retitling property located in other states so you and your desired beneficiary jointly hold ownership with rights of survivorship. As such the named beneficiaries would automatically inherit the property at your death without the necessity of probate.