Probate is a common step in estate administration and distribution and is often required when a person has passed away and owned assets that were not in anyone else’s name or that did not have a transferable-on-death or payable-on-death designation. Through probate, a court will examine the deceased person’s estate and make sure that all debts and taxes are paid before distributing the remainder of the estate to any beneficiaries.
But what happens when the decedent had property located in another state? Traditional probate procedures are carried out by the court that has jurisdiction over the decedent’s place of residence. When the estate being probated includes out-of-state properties and assets, an executor can request to initiate a secondary probate proceeding, called ancillary probate. This is a procedure meant solely for handling out-of-state properties, since the court where the original probate procedure is being handled does not have the authority to issue any orders related to assets outside the state.
How Does Ancillary Probate Work?
The ancillary probate process varies by each state, but overall, it begins after the probate process is initiated in the decedent’s state of residence. The executor must then begin ancillary probate in every state where property was owned by the deceased person. The first step is submitting the will to the out-of-state court, and as long as there are no challenges to the will, the court will admit it—this is called an admission of a foreign will.
What typically follows is an abbreviated version of the primary probate process. You may or may not be required to request authorization letters from the ancillary probate state in order to gain equivalent executor powers,like those you may have in the primary probate state. Check with your Clarksville estate planning attorney to see if you are able to use the authorization letter from the decedent’s original probate proceedings to take control of ancillary probate properties in order to sell or transfer it as prescribed in the will. This bypass is possible in some states, but not others.
What Are The Disadvantages?
Ancillary probate comes with its disadvantages, in most cases. Besides lengthening the total waiting time for beneficiaries to receive their shares of the estate, the executor may have additional expenses, such as court filing fees and hiring an attorney that is barred in that state. With that in mind, some people would rather avoid going through this process. There are a few common tactics used in that regard, such as transferring all out-of-state property before death by owning the property in a joint tenancy with the right of survivorship. Another tactic is to record a transfer-on-death deed in the state where the property is located. Please note that there are only 27 states that recognize and allow transfer-on-death deeds, so this may not work for every situation, but when allowed, a transfer-on-death deed may be a fairly simple way to bypass ancillary probate proceedings. It is highly recommended that individuals with complex estates which may require ancillary probate consult an experienced estate planning attorney to learn the best strategies for their situation. Consult the legal team at Crow Estate Planning and Probate, PLC to learn more about how our firm can help your family plan for the future.