If you own a home, a boat, or other property out of state, your heirs might need to go through another probate or court process to receive it. This is known as ancillary probate.
The laws of the state where the property is located will determine how it’s divided, should you not place it within your own trust agreement. Some things to consider as you plan your estate include the potential difficulties of ancillary probate, such as extra work and legal and accounting fees.
The Ancillary Probate Process
If you’ve filed a will for property in the state where you live, all probate procedures will start there. The probate court in your home state may need to accept or admit the will with your out-of-state property, if there aren’t any challenges, as a “foreign” will. The out-of-state court should then also accept it or have its own independent process.
The ancillary probate process is often shorter than the one in the primary state, however, the executor or administrator of the primary last will and testament may need a lawyer in the second (or third) state to handle the procedure. The executor needs the same powers and responsibilities in each state for authority over the property.
Ancillary probate may be simplified, and sometimes, you can avoid it altogether. State laws differ, so it’s best to discuss with your own attorney to determine how they apply in the locations involved. For example, in the home state, the executor might need only to file letters of authorization and a copy of the will there to avoid having to be appointed executor in the second state. Among the alternatives, if it is a possibility, you could consider small estate proceedings if the property isn’t too valuable.
Other options for avoiding ancillary probate may include:
- funding the property into a trust agreement (whether or not a will already exists)
- a transfer-on-death deed
- adding a co-owner to the title or joint tenancy with the right of survivorship
- selling or transferring the property before death
It can be tough to think about the future, especially when time is of the essence. Remember, you don’t have to do it all alone. If you need help on this issue or any other, don’t hesitate to contact us for advice and support.