An Introduction to Ancillary Probate
Ancillary Probate is a legal process used when a property is located outside the deceased person’s state and must be administered by a surviving owner.
What Is Ancillary Probate?
The last thing you want to deal with after losing a loved one is the administrative headache of the decedent’s estate. This can become quite complex, especially when the decedent owned real estate in more than one state or country. The law can be complicated, so contact experienced Las Vegas probate lawyers for assistance if you have questions.
Probate is the process of the administration of a deceased person’s will or the estate of a dead person without a will.
Typically, all identified assets will be distributed under the will or following state rules. During the primary probate proceeding, the decedent’s final affairs, including paying off debts, are wrapped up. Any remaining property is dispersed to the appropriate parties, beneficiaries, or heirs.
An ancillary probate court proceeding is a simultaneous process applied when the decedent owns property in a different state. The decedent’s home state probate court does not have legal jurisdiction over property in another state.
When Would a Decedent’s Property be Subject to Ancillary Probate?
Real estate and tangible personal property, such as cars, boats, and airplanes, that have been registered and titled out-of-state property would all be subject to ancillary probate.
Often, a vacation home is owned outside the decedent’s domicile. If the non-domiciliary decedent owned oil, gas, mineral rights, or even livestock attached to real estate physically located in the non-domiciliary state, ancillary probate court proceedings would be required.
Disadvantages of Ancillary Probate
Multiple court fees, probate attorney fees, law firm fees, and advertising costs are fundamental problems with ancillary probate. Even with cooperation between state courts, ancillary administration can still be lengthy and costly. If the decedent passes without a will, the matter is more complex.
The Ancillary Probate Filing Process
The Probate Process
Probate usually starts from the residence or domicile of the decedent. A person is considered to be domiciled in the place where they maintained a permanent home. Your domiciliary court is responsible for confirming the will’s validity and the executor’s naming.
Once the probate process is initiated in the domicile residence, the executor may open up an ancillary probate court proceeding in another state where the decedent owned property. This is known as an ancillary probate proceeding and requires ancillary letters.
Challenges to the will must be made in the probate court. If this court admits the will, ancillary probate courts will do the same. This would be known as “admitting a foreign will.”
The Ancillary Probate Process
Even though every state has its probate process and laws, ancillary probates follow the same process as primary probates.
For efficiency and cost savings, some states do not require the primary probate state’s executor to obtain authorization from the secondary probate state if the primary probate state has already provided its letters. Secondary executors are permitted to file primary probate letters and send a copy of the will, constituting approval for the process.
This way, the foreign executor is given the same powers and responsibilities as the primary executor. This power is required so that the secondary executor can take control of the property and deal with it in terms of the will or state laws.
How Much Does Ancillary Probate Cost?
Probate involves several fees, including:
- Court fees: Court costs vary according to state law. The amount is determined by the number of forms that need to be filed as well as the complexity of the estate. Filing fees can vary from a few hundred to over a thousand dollars. Since more than one court is involved, there will be more court costs.
- Executor fees: Unless the decedent has prescribed an executor fee in the will, the executor fees will be dictated by state law.
- Attorney’s fees: Generally, the attorney’s fees are prescribed by state law.
A rule of thumb is that the total fees can be between three and eight percent of the estate’s total value.
The costs associated with ancillary probate may seem overwhelming. However, suppose the deceased person owned property in multiple states. In that case, it is essential to go through the ancillary probate process to ensure that the deceased’s wishes are followed, and their assets are distributed according to their estate plan.
An experienced estate planning attorney can help you navigate the process, ensuring it is as efficient and cost-effective as possible.
How Long Does Ancillary Probate Take?
In most cases, this process takes between 120 and 180 days. There are prescribed periods for publishing creditor notices and responding to creditors, assuming the probate is straightforward without complications. The process can be longer in complex cases, disputes, or even conflicting state laws.
Avoiding Ancillary Probate
Ancillary probate proceedings can be time- and money-consuming, so many people do their best to avoid them. This must be done in advance and requires careful planning and foresight.
Ways in which you can try to avoid ancillary probate will probably include the following:
Putting the property into a revocable living trust.
Transferring property to joint tenants or community property with the right of survivorship.
Filing a transfer-on-death deed for the property.
Usually, probate-avoidance tactics are part of an estate planning process. If there has been no estate planning, the possibility of avoiding ancillary probate does not exist.
The Wood Law Group is here to help if you have any questions or concerns. We regularly take on ancillary probate work for our clients. Contact us today to discuss your probate estate and the property located in multiple states. Our attorneys are experienced and knowledgeable in this area of law and will be able to provide you with the best possible advice.
Low-Value Estates and Probate
A full-blown probate proceeding is usually not necessary for small estates. States define “small estates” differently, so an estate that meets one state’s definition may not qualify for another state’s exemption.
Seeking Legal Assistance With Ancillary Probate
Ancillary probate court proceedings can be tricky, and many issues are to consider. An estate planning attorney in Las Vegas can help. Contact a probate lawyer for a free evaluation within a confidential meeting.