Ancillary Probate: Probate in Another State

Owning Real Estate in Multiple States may Require Multiple Probate Proceedings

Having to go through multiple formal probate court proceedings in different states can be challenging and time-consuming after the death of a loved one.

If an individual resides in one state but owns real estate in another state, it may be necessary for two probates. This is due to the fact that the law governing real estate is always based on the location of the property, rather than the residence of the owner.

Example: Martha lives in New York and owns property there. She also has a vacation home in Florida that she and her husband purchased together. Since her husband’s passing, Martha is the sole owner of the vacation cottage. When Martha passes away, a probate court proceeding may be necessary in Florida before her daughter can inherit the cottage.

The Ancillary Probate Process

Probate in a second (or third) state is referred to as “ancillary probate,” and for the executor of the deceased person’s estate, it entails additional inconvenience and cost. It is likely that the executor will need to locate a lawyer in the other state to manage the probate process.

Probate is initiated in the state where the deceased person resided, also known as “domiciliary probate.” Following that, a separate probate court case, known as the “ancillary probate,” is opened in the state where the out-of-state real estate is situated.

Once a will is accepted by the probate court in one state, it is generally accepted by another state without additional proof. This is known as a “foreign will.”

Making the Process Simpler

Certain states have a process in place that allows executors from different states, commonly referred to as “foreign executors,” to bypass certain requirements. Instead of having to go through the process of obtaining letters of authorization from a court in the second state, individuals who have already been granted authority as an executor in another state can simply submit the letters from the other state along with a copy of the will, if applicable.

Example: Judith’s father appointed her as the executor of his estate in his will. After his passing, she begins a probate process in Minnesota, where her father resided. However, her father also owned a property in Indiana, and the Minnesota probate court lacks jurisdiction over out-of-state real estate.

According to Indiana law, Judith is able to obtain the powers and responsibilities of an Indiana executor by submitting a copy of the letters issued by the Minnesota probate court to the probate court in the Indiana county where the house is situated. Once this is done, she can proceed to assume control of the real estate and sell or transfer it in accordance with her father’s will and the probate rules of Indiana.

Avoiding Ancillary Probate

To avoid complications and costs for your family after your death, it is important to prioritize avoiding probate for real estate that is solely owned and located out of state. There are typically multiple options available depending on the laws of the state, which may include various approaches.

• Owning the property with someone else in joint tenancy, tenancy by the entirety, or community property with right of survivorship.
• Creating a revocable living trust for a property.
• Recording a transfer-on-death deed for the property.