Description: Ancillary probate is when you have two probate proceedings open simultaneously in two or more different states
What is Probate?
Probate is the legal process of transferring a person’s assets after death. This process includes distributing their property, paying debts and taxes, and resolving legal issues. The probate process can be complicated and time-consuming, so it’s essential to understand what it is and how it works before you find yourself in the middle.
What Is Ancillary Probate?
In short, ancillary probate is probate that happens outside of the deceased person’s primary jurisdiction. This proceeding can occur if the deceased owns property in more than one state. In this case, a separate probate proceeding will be opened in each jurisdiction where the deceased owned property.
The reason ancillary probate is necessary is that each state has its laws regarding inheritance and property ownership. So, when someone dies and owns property in multiple states, each state needs to confirm that the deceased’s wishes regarding that property are carried out according to their laws.
If you are named as an executor or administrator in someone’s will and they own property in multiple states, you may need to open an ancillary probate proceeding. Speak with an attorney to find out if this is the case.
When is Ancillary Probate Necessary?
When someone dies owning property in more than one state, an ancillary probate proceeding may be necessary to transfer the out-of-state property to the person’s heirs. Ancillary probate is a secondary probate proceeding filed in a state where the deceased person owned real estate or other property, in addition to the primary probate proceeding that is filed in the state where the person lived at the time of their death.
If a person owns real estate in multiple states, each piece of property must go through probate to be transferred to the rightful heir. In this case, the primary probate proceeding would occur in the state where the deceased person lived, and ancillary probate would need to be filed for each additional state in which they owned property.
The Process of Ancillary Probate
Ancillary probate is handling someone’s estate after they die if they own property in more than one state. This can happen if the person lived in one state but owned property in another or if they owned property in multiple states. Ancillary probate is necessary because each state has laws about handling someone’s estate after death.
The first step in ancillary probate is determining which state’s laws will be used to settle the estate. This is typically the state where the person died, but it could also be the state where they owned property. Once the law that will be used has been determined, the next step is to file a petition for ancillary probate with the court.
After the petition has been filed, a notice must be sent to all interested parties.
This includes the decedent’s spouse, next of kin, creditors, and any other person with a financial interest in the estate.
If there are no objections, then it will likely be granted, and the estate can be distributed according to the terms of the will. However, if there are objections, a hearing will be held to determine whether or not probate should be granted. During this hearing, interested parties will have an opportunity to present their evidence and argue their case. After both sides have been heard, the judge will decide whether to grant probate.
Avoiding Ancillary Probate
One way to avoid ancillary probate is to use a living trust. Your assets are held in trust with a living trust and do not pass through probate. This means that if you own property in multiple states, there is no need for an ancillary probate court proceeding in each state. Another way to avoid ancillary probate is to name an executor in your will who lives in the same state as the property. If you do not have a will, state law will determine who inherits your property.
While ancillary probate may not be required in every estate, there are certain circumstances where it may be necessary. For example, if the deceased owned property in more than one state, an ancillary probate proceeding may be required to probate the out-of-state property.
Suppose you are named as the executor of an estate that includes out-of-state property. In that case, it is crucial to seek legal counsel to determine whether or not an ancillary probate proceeding will be necessary. An attorney can help you navigate the complex legal process and ensure that all of the deceased’s assets are appropriately accounted for and distributed according to their wishes. Contact Mark Fishbein, Tucson Estate Planner or ALTA Estate Services for more information about Tucson Estate Planning.
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The text above is for general informational purposes only, and should not be considered legal advice.