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What is ancillary probate? Demystifying the process

On Behalf of | Sep 22, 2023 | Estate Planning & Probate

Probate can be quite complex and time-consuming, and it gets even more complicated when the deceased owns property or assets in more than one state.

That’s when something called “ancillary” probate comes into play.

How ancillary probate differs from regular probate

Ancillary probate is, in essence, a second probate process that’s distinct from the “domiciliary” probate process held in the deceased’s home state. It’s limited in scope since it only deals with out-of-state assets. Ancillary probate is needed for several key reasons:

  • To satisfy jurisdictional requirements: Each state has its own laws and regulations governing the transfer of property and assets upon someone’s death.
  • To ensure clear title: Ancillary probate helps ensure that the ownership of the decedent’s out-of-state property is transferred legally and the title is clear. This process helps prevent future confusion or claims over the property’s ownership.
  • To protect local creditor claims: Ancillary probate allows local creditors in the state where the property is located to make claims against the decedent’s estate. This ensures that all valid outstanding debts and obligations are properly settled.
  • To address tax issues: The value of the property may be subject to local estate taxes, which can be addressed through the ancillary process.
  • To simplify sales and transfers: If the decedent’s out-of-state property needs to be sold or transferred, ancillary probate is necessary to grant the administrator the authority to do so. This ensures that any sale or transfer is legally valid.

Ancillary probate involves a separate legal proceeding in the jurisdiction where the property is located. This does mean additional paperwork, fees and potential delays. For that reason, a lot of testators look into legal ways to circumvent the ancillary probate process, including the use of direct transfers or trusts.

Understanding when and why ancillary probate is needed is important for a smooth and legally compliant resolution of an estate’s affairs. If you’re looking ahead and putting your own estate plans together, you may benefit from exploring ways to avoid ancillary probate altogether. If you’re an estate representative, it can be helpful to get more information about the ancillary process by seeking legal guidance as needed.