You might live in Pennsylvania, but own a piece of real estate one the New Jersey shore. That property can’t be probated in Pennsylvania. Ancillary probate can also apply to tangible personal property such as cars, boats, or airplanes that are registered and titled out of state.
How Does Ancillary Probate Work?
The executor of a “domiciliary” probate proceeding—that which takes place in the decedent’s state of residence and where their will has been admitted for probate—will initiate an ancillary probate proceeding when it becomes clear that the estate includes assets that are registered or titled out of state. State courts often work cooperatively when ancillary probate becomes necessary. Other state courts are likely to accept the “foreign will” more or less automatically once the domiciliary court has done so. Ancillary courts sometimes accept authorizations provided to the executor by the domiciliary court so the executor doesn’t have to go through the dual process of applying for another authorization. This cooperation can shorten the ancillary probate proceeding.
Disadvantages of Ancillary Probate
One of the biggest drawbacks of ancillary probate is the added cost of having to administer more than one probate estate, including multiple court fees, accounting fees, and attorneys’ fees. This can happen even if the process is shortened by cooperation between the state courts, and it can deplete the financial reserves of the estate. Another drawback can occur when an estate is intestate, meaning the deceased died without a valid last will and testament. Intestacy laws determine who receives the decedent’s property when there is no will, and the laws of all 50 states and the District of Columbia vary slightly. It’s possible that the rightful heirs of an intestate estate could be different in the domiciliary state from those in the state of the ancillary probate proceeding. That would be a major complication.
Can I Avoid Ancillary Probate?
Probate isn’t necessary for any property that’s placed in a living trust, regardless of where that property is located. You can allow property located in your state to pass to your beneficiaries through the probate of your will, then simply title your out-of-state proceeds in the name of your trust. No ancillary probate would be required for those assets. You might also consider retitling property that’s located in other states so you and your desired beneficiary jointly hold ownership with rights of survivorship. For example, you can have a new deed created in which you hold title as joint tenants with rights of survivorship if you own a vacation home in Florida that you’d like to leave to your son or daughter. They would automatically inherit the property at your death without the necessity of probate. Twenty-eight states recognize special beneficiary deeds that allow real property to be transferred at your death without a probate proceeding. Beneficiaries named on the deeds can take title by recording an affidavit with the county clerk.
