Hyden, Miron & Foster, PLLC Law Blog

Monday, August 17, 2020

What Is Ancillary Probate?

People do not usually have many good things to say about the probate process. You have recently lost a loved one. You have to go through what can be lengthy court proceedings before any beneficiaries of the estate receive an inheritance. It can also be costly as court fees add up and legal fees should you seek help from an attorney. This might make it all the more discouraging to hear that ancillary probate might be necessary in addition to primary probate proceedings.

What is Ancillary Probate?

Ancillary probate occurs in addition to primary probate and is often required when a decedent owns real estate or tangible personal property in another state at the time of his or her death. Not only does this mean that essentially two different probate proceedings will be required to settle an estate, but it also means that a separate set of laws will come into play. This is because the laws of the state where the property is physically located generally govern whatever happens when the owner of the property dies, not necessarily where the person lived at the time of his or her death.

While ancillary probate often involves real estate property, like a vacation home, it can apply for other things. Motor vehicles, boats, and airplanes may all be subject to ancillary probate if they are registered and titled outside of the state where the decedent died. Additionally, things attached to real estate located in another state may need to go through ancillary probate. This may include things such as oil, gas, and mineral rights attached to real property.

As you can imagine, ancillary probate is often dreaded. One set of probate proceedings is usually more than enough to handle. The fact that there will be added costs of having to administer more than one probate estate can be frustrating, to say the least. Accounting for multiple court fees, accounting fees, and legal fees can be tough to go through. The good news is, however, that there are ways to avoid the added headache, costs, and complications associated with having to go through ancillary probate.

To avoid ancillary probate, you can employ the same techniques that are often used to avoid primary probate. This may mean placing property in a living trust. Trust property passes outside of the probate estate. In the alternative, you may want to consider retitling the property you hold in different states. If you retitle the property so that you and your selected beneficiary hold joint ownership of the property with rights of survivorship, then your ownership interests in the property would pass directly to the beneficiary upon your death without the need for probate.

Another option in some states is, if available in a particular state, to use a special beneficiary deed which will allow a piece of property to be transferred upon your death without needing to go through probate proceedings. Right now, 23 states recognize these special types of deeds.

Estate Planning Attorneys

When there are problems, there are solutions. At Hyden, Miron & Foster, we are here to help solve potential estate planning problems. Our knowledge of estate planning is used to draft estate plans that best protect your best interests and that of your family. Contact us today.


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