Ancillary Probate

The probate process is often complex enough, but there is one way to make it even more complicated. That is when someone dies and leaves solely-owned properties in more than one state.

While the personal property of a decedent is probated in the deceased's state of residence, non-home-state real estate – think a second home or rental property – must be probated in the state where it is located.

A separate court proceeding involving real property in the "foreign" state is called "ancillary" probate administration and it can often be governed by laws that are different from those that oversaw proceedings in the decedent's "domiciliary" or "primary" probate state.

Ancillary probate inevitably involves more delay and additional expenses in administering an estate, especially if it becomes necessary to locate and oversee a second probate lawyer licensed to practice in the foreign state.

In addition, some states insist upon the appointment of a personal representative who is a resident in that state to administer the estate's real property, regardless of what a decedent might have instructed in a will.

But there is good news, as well. To expedite the ancillary probate process, most states have provisions for admitting into their probate courts an authenticated copy of a will that has been proved valid in another state, as well as a certified copy of the estate's personal representative's appointment.

This usually lets the foreign state issue ancillary letters of authority permitting the original personal representative to exercise all the powers that would ordinarily be granted to a local personal representative, including the transfer of the decedent's real property to the will-designated beneficiary(s) or, if there is no will, to any heirs at law.

For example:

In Florida, if a non-resident dies and leaves real property assets in Florida, his or her personal representative from the domiciliary (home) state will be entitled to have ancillary letters issued allowing him or her to act as personal representative if that person is otherwise qualified to do so.

According to Florida statutes, these ancillary personal representatives "have the same rights, powers, and authority" to perform the same duties as traditional executors or personal representatives. They can raise money to pay off the estate's debts. And they can "sell, lease, or mortgage local property."

Another example:

A Florida resident dies and leaves ancillary property in North Carolina. After probate administration in Florida, the estate's personal representative must then petition for ancillary administration in North Carolina.

As in all matters of probate, it is necessary to adhere to the specific laws of the state where the ancillary probate is being administered. Even states that adhere to the Uniform Probate Code (UPC) might have exceptions to the general rules.

Another item to remember is, if the foreign state imposes inheritance or estate taxes (North Carolina does impose its own estate tax), these taxes are payable to that state, and not to the state of decedent's residence, even if taxes have already been paid in the domiciliary state.