Ancillary Probate: Owning Property in Several States

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What Is Probate?

A person owning quite a bit of property will want to create a “last will and testament” before he or she dies, to bequeath her property to loved ones, or “beneficiaries.”  However, wills must be created pursuant to legal formalities.  The process of probate determines whether the will was properly created, levies death taxes, and resolves conflicts among heirs. When a person dies without a will, called intestacy, probate courts will distribute property according to the state’s intestacy distribution laws.

Where Will Probate Take Place?

Probate is filed in the county of “domicile,” that is, the deceased person’s permanent and primary residence.  That main probate court will rule on all matters of personal property, bank accounts, and other assets.  However, if a deceased person owns real property such as land or a home in a different state, that property is subject to the law of the state in which it sits. 

What Is Ancillary Probate?

An “ancillary probate” is a supplemental probate proceeding held in the state where the real property is situated, but where the deceased person does not live. For example, an Idaho resident may have a condominium in Yuma, Arizona.  Arizona will require that an ancillary probate be held on the property to clear title and satisfy creditors, prior to its inheritance by beneficiaries.

Can I Avoid Ancillary Probate?

Probate in several states can be time-consuming and costly.  However, ancillary probate on out-of-state property can be avoided by holding the property in joint tenancy with another person.  When one of the owners dies, the other person retains full ownership of the property.

Another option is to place all out-of-state property into a revocable living trust.  That way, the property will pass to beneficiaries outside of probate, according to the directions set forth by the trust.  Transfer on death deeds may also serve to avoid the time and costs of ancillary probates.

Should I Consult a Probate Lawyer?

Ensuring that your property is distributed according to your intentions and in a timely manner is an important matter. If you own property in several states and are considering forming a will or trust, an estate lawyer can help ensure a smooth probate process.

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Last Modified: 01-28-2014 04:28 PM PST

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