Estate and Business Planning Legal Blog

Wednesday, October 30, 2019

Ancillary Probate: What is it?

When someone passes away, as a resident of one state owning real property in another, it is necessary to do an ancillary proceeding.  If the decedent died leaving a will, then it is referred to as an ancillary probate, while if there was not will, it is usually referred to an ancillary administration.

Quite simply, the law, applicable to all fifty states, is that when one dies owning real property in a state other than where one resided, you not only need to probate the person's will (or administer his/her estate) in the state of residency, but in other states where the person owned property.  Of course, this can become an expensive and tedious process, especially if the person resided in or owned property in a state where the probate process it is difficult, for example, in Florida.  Moreover, it also means a considerable delay, since there will be two or more probate proceedings, depending on how many states one owns property in.

Is it the end of the world if one needs to an ancillary proceeding? Of course not.  In New York for example, all that is required except for some relatively simple paperwork are authenticated copies of the probate documents filed with the Court where the person resided.  The consent of the New York State Department of Taxation and Finance is also required.  In other states, the process is more complicated.

An easy and painless solution to the problem of ancillary proceedings is that if one owns real property in more than one state, then he/she should create a revocable living trust and transfer the property into that trust.  This has the effect of avoiding probate altogether, with respect to the property owned by the trust.  The property simply passes to the beneficiaries named in the trust, as a matter of law, and without the need for any court proceeding.

Proper planning can avoid the trouble and expense of additional court proceedings; therefore, it is imperative, especially if one owns property in another state, to engage in estate planning with a knowledgeable attorney.




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