Ancillary Probate: More Proceedings in Another State?

Any probate lawyer will tell you that the only thing worse than regular probate is ancillary probate, which may be necessary when estate assets are held in more than one state.

By , J.D. · UC Berkeley School of Law

Ask any probate lawyer, and they'll tell you that the only thing worse than regular probate is ancillary probate—that is, a second probate proceeding for the same person, conducted in another state. But sometimes it just can't be avoided.

When Ancillary Probate Is Necessary

A second probate court proceeding is necessary if the deceased person owned real estate, or other tangible property, in a state other than the one he or she lived in. For example, it's not uncommon for a New York resident who wants to escape cold winters to own a house in Florida or a boat that's kept and registered in that state. Some investments may involve valuable tangible property as well—for example, mineral rights in land in another state.

When someone dies, real estate and items that are physically situated in another state are governed by the probate laws of that state. So a New York probate court proceeding might take care of almost all of the New York resident's property—except the Florida cottage. For that, there may need to be a separate probate in the Florida courts.

Drawback of Ancillary Probate

The downsides of a second probate proceeding—there are no advantages—are obvious. The estate usually ends up hiring -- and paying -- another probate lawyer who practices in the second state. More court costs and filing fees must be paid. It may take longer for beneficiaries to get their inherited property.

Some states do try to make things a little simpler for out-of-state executors who are already handling one probate. If you have already been named an executor and need to open an ancillary probate, you may not need to go through the whole process of requesting that the court appoint you as executor. Instead, the second state may only require you to file your letters of authorization from the first state and a copy of the will. That may be enough to give you authority to handle the ancillary probate.

Avoiding Ancillary Probate

Probate-avoidance tactics must be undertaken by someone who is doing the planning for his or her own estate. As the executor, there's really not much you can do after the death.

If you are asked in advance to serve as someone's executor, though, ask whether or not there are assets in another state. There may be simple ways to avoid an ancillary probate—for example, by putting a house in a simple living trust, using a transfer-on-death deed, or adding a co-owner to the title.

After the death, be sure to explore possible ways to transfer the property without a full-blown probate proceeding. If the property isn't too valuable, you may be able to use special probate shortcuts for small estates.

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