Ancillary Probate: When More Than One Proceeding Is Necessary

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When a loved one passes, it can be a trying time as your family grapples with the loss and, simultaneously, starts the process of getting affairs and documents in order for everything that comes next. 

Unless a deceased individual had a properly executed and funded revocable living trust, in which case a trust administration will be necessary, a probate proceeding will take place to disburse assets to the appropriate beneficiaries and close the estate. During this legal proceeding, the probate court assumes jurisdiction over the individually owned assets of someone who has died, ensuring that all expenses are paid and assets are distributed according to that person’s will, or to their heirs-at-law if a will has not been created during their life. 

You can prepare for probate by creating a will, which includes instructions to the probate court as to how your property should be distributed by your personal representative.  

A typical probate process includes: 

•     Submitting a will to the court;

•     Locating property of the decedent and all beneficiaries;

•     Paying taxes, valid debts and other administrative costs;

•     Distributing property; and ultimately,

•     Closing the estate. 

As straightforward as it may sound, the probate process can, unfortunately, be a complicated one. It is a timely process, too. What can be extra complicated is having to go through two probate court proceedings in different states. This is called ancillary probate, and it takes place more often than you may think.  

Especially in Florida, where it is not uncommon for individuals to own property in multiple states, ancillary probate can be required. Ancillary probate is a type of probate proceeding that is in addition to the primary (domiciliary) probate proceeding. The domiciliary probate takes place in the state in which the deceased identified as a resident.  

How Do I Know If An Ancillary Probate Is Needed? 

If a deceased individual owns property in another state other than his or her domiciled state, an ancillary probate proceeding is typically required. This applies to real estate property and sometimes personal property, such as cars, that are registered and titled out of state.  

The laws of that state in which the property is located will govern what happens next with those assets, thus the need for the additional proceeding to determine the distribution of those assets to the beneficiaries. 

What Can I Expect With An Ancillary Probate? 

First, keep in mind that there could be multiple ancillary probate proceedings. There will be an ancillary probate proceeding for any state where other property is owned, which could be several if, for example, an individual owned vacation homes in multiple states.  

You can also expect increased expenses and additional time in filing more than one probate with the courts, especially when communication with the courts of another state is not as seamless.  

When a deceased has passed without a will, or intestate, then intestate succession laws will determine how assets will be distributed. Each state has its own laws surrounding this topic and how heirs are considered in one state may not receive the same consideration in another. Therefore, beneficiaries should be prepared for the possibility that a loved one’s property may be distributed out of state in a way that is not what they may have anticipated. 

Is There A Way To Avoid Ancillary Probate? 

Just like any probate proceeding, this process could be skipped if there is a funded revocable living trust in place that includes the property held in another state. In this scenario, the state in which this property is located, and the laws of that state, do not affect the distribution of this asset. This is the best-case scenario for a piece of property that is titled with the deceased as the sole owner.  

Another way to avoid an ancillary probate proceeding is to make sure the out of state asset is titled as jointly owned with your beneficiary with rights of survivorship. Under such title, the beneficiary/joint owner would automatically own this asset upon your passing, without having to go through probate, even if they are not a resident of the state where the asset is located.  

Additionally, you may record a transfer-on-death deed in that state for any real property, if such a deed is recognized by that state. 

What To Keep In Mind During Ancillary Probate 

A last will and testament is typically going to list who that individual would like to serve as personal representative of his or her estate. The personal representative is responsible for making sure all expenses are paid and assets are distributed according to the decedent’s wishes as outlined in the decedent’s estate planning documents.  

For out of state property, the personal representative appointed of the domiciliary probate estate is not automatically granted authority over the out of state assets because probate courts vary by state. However, some states will allow the personal representative, or executor, to hold the same responsibilities simply by filing letters from the domiciled state’s probate proceedings. In this case, the personal representative can then act by selling or distributing the real property, according to the terms outlined in the will and alongside probate rules of that state.

 
 

 Ask A Florida Probate Attorney For Assistance 

If there is an ancillary probate to consider, contact one of the experienced probate attorneys at Kira Doyle Law to guide you through both this process and a primary probate proceeding. We can help eliminate much of the complications and stress of the probate process. Call our St. Petersburg office at 727-537-6818 or complete the form below today to schedule an appointment to discuss how we can help!

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