A person who owns any significant forms of property should really consider creating a “last will and testament” document before they pass away. This will help to ensure that the persons whom they wish to inherit the property will receive it. Otherwise, if the person dies without a will (i.e., intestate), then the probate courts will simply distribute their property in accordance with the relevant state’s intestate succession laws.
Before the contents of a will can be distributed, however, the law requires confirmation that the will was created in a manner that is considered valid and legally enforceable. Thus, in order to verify the will, it must go through what is known as the “probate process.”
After the testator (i.e., a person who forms a will) is deceased, the probate process will be used to manage the following items regarding the deceased’s estate:
- Determining whether the will was properly formed;
- Ensuring the estate’s taxes and debts are paid off in full;
- Identifying the property of the decedent;
- Distributing property and/or assets to the entitled beneficiaries; and
- Resolving any conflicts between remaining parties (e.g., heirs, beneficiaries, etc.).
Where Does the Probate Process Take Place?
Generally speaking, probate is typically filed in the county of the deceased’s “domicile” (that is, the location of the person’s permanent and primary residence). After being filed, the probate court in that county will become the primary probate court to oversee all related matters, including personal property, bank accounts, and various other assets.
On the other hand, if the deceased owns real property, such as a land plot or a house in a different state, that property will be subject to the law of the state in which it sits (i.e., “situs”).
What is Ancillary Probate?
Ancillary probate is a type of supplemental probate proceeding that takes place after the initial probate proceeding has begun and when a decedent owns property or has title to a property in a place where they do not normally reside. These types of proceedings are generally held in the state where the additional property is situated.
For example, if the deceased permanently lives in a house located in Idaho state, but owns a ski house in the state of Vermont, then the ski house will be distributed to the beneficiaries in accordance with the applicable laws of Vermont.
For the same reasons as to why probate exists, an ancillary probate is also required for secondary real property holding. This is required in order to clear title and satisfy any debts owed on it to creditors before it can be inherited or acquired by the named beneficiaries.
Can I Avoid Ancillary Probate?
Most people would prefer to skip the overall probate process since it can often be costly and time-consuming. Similar to the standard probate process, ancillary probate proceedings can be avoided in many of the same ways.
One way to avoid ancillary probate for property located in another state is by holding the property in a joint tenancy arrangement with another person. This way if one of the owners dies, the other person will automatically retain full ownership of the property. Thus, an ancillary probate proceeding will not be necessary because one owner will still be in possession of it, which means it cannot yet be distributed.
Another way in which ancillary probate may be avoided is by placing any property that is situated in other states into a revocable living trust. This type of trust is formed when the owner of the property is still alive. The property holder will then appoint a trustee to oversee the trust.
The trustee will also become the person responsible for distributing the trust property to the proper beneficiaries once the property holder dies. This way, instead of having to go through the ancillary probate process, the property will simply pass to the beneficiaries outside of probate and in accordance with the directions set forth by the terms of the trust.
One last option is to use a “transfer on death deed.” A death deed is a type of deed that permits a real property owner to transfer property to an assigned beneficiary at their death and without the need of having to go through the probate process. However, it is important to note that transfer on death deeds are not available in every state.
Do I Need to Hire a Lawyer for Help with Ancillary Probate Issues?
It is important to make sure that your property is distributed in the way that you intended for it to be and that the distribution is completed in a timely manner. Otherwise, your beneficiaries could potentially miss the opportunity to inherit any property and/or assets that rightfully belong to them and lose it to the state.
Therefore, if you own property in one or more states, then you may want to consider contacting a local probate lawyer for further assistance. An experienced probate lawyer can aid you in drafting a will or setting-up a trust, and can help ensure that you experience a more efficient probate process.
