What is ancillary probate?

A secondary probate process for property owned in other states

Derek Silva

By

Derek Silva

Derek Silva

Personal Finance Expert

Derek is a personal finance editor at Policygenius in New York City, and an expert in taxes. He has been writing about estate planning, investing, and other personal finance topics since 2017. He especially loves using data to tell a story. His work has been covered by Yahoo Finance, MSN, Business Insider, and CNBC.

Published November 6, 2020|3 min read

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Key Takeaways

  • Ancillary probate is a secondary probate process for property someone owned outside of their home state

  • It commonly involves real estate but ancillary probate can also involve personal property, like a car

  • The executor is responsible for starting an ancillary probate process, but they may want help from a local lawyer

  • Avoid ancillary probate by making sure your property is jointly owned, in a trust, or has a transfer-on-death (TOD) deed

Ancillary probate is an additional probate process that occurs when a decedent (deceased person) owned property in a state outside the state in which they lived. Probate is the legal process where a court proves the authenticity of a deceased person’s last will and testament, identifies debts or taxes the estate owes, and notifies beneficiaries of any inheritance. Initially, probate begins in the state where the decedent lived, but an estate cannot be settled — probate completed and assets passed on — until all ancillary probate proceedings are done.

A secondary probate proceeding can quickly become expensive through court fees, lawyers fees, and other unavoidable filing costs. Those costs will decrease any inheritances the decedent wanted to leave their heirs. Managing multiple proceedings can also be challenging for an executor, potentially requiring the help of lawyers in other states.

You can generally avoid ancillary probate administration by either making sure you aren’t the sole owner of property when you die, by putting the property into a trust before you die, or by getting a transfer-on-death (TOD) deed — if the property is in a state that allows such deeds.

When is ancillary probate necessary?

Ancillary probate is necessary when someone dies while they are the sole owner of property in a state that wasn’t where the person had their primary residence. While ancillary probate most commonly involves a second home, rental property, land, or other real estate, it applies to all tangible personal property, including cars and boats registered in other states.

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How ancillary probate works

After someone dies, their estate’s executor or personal representative is responsible for petitioning a local court to begin the probate process. The process should begin in the decedent’s home state. Probate in the state where the decedent lived is also called domiciliary probate.

For property in other states, the executor must usually begin a secondary probate proceeding through a similar process, except that it’s in the state where the property is located. The executor can visit or contact a court in the other state to begin ancillary administration, but they may want to contact a local probate or estate lawyer for help. The executor will need to do this in each additional state where the decedent owned property, since each state sets its own probate law.

Related article: How to make a valid will in every state.

Once a will has been proven by the court handling the original probate, courts handling ancillary proceedings will usually accept the will’s validity. (A will proved in a different state may be called a foreign will.) Similarly, a secondary probate court will usually recognize the letters testamentary that authorizes the executor to serve in their role. (An executor confirmed by another state’s court may be called a foreign executor or foreign personal representative.)

As a reminder, here is a brief overview of the probate process:

  • Get the death certificate

  • Petition the court to officially become executor (get letters testamentary)

  • Identify the estate’s assets and begin ancillary probate if necessary

  • Pay any debts, taxes, or other expenses the estate has

  • Notify beneficiaries of the estate and distribute assets

How to avoid ancillary probate

The general way to avoid ancillary probate for your estate is to ensure that you aren’t the sole owner of property in other states or that the property can otherwise be passed on without going through probate. This may require some advance planning, but there are three main ways to avoid ancillary administration:

Make sure all property is jointly owned if it’s in a state where you don’t live. This may require you to retitle the property, or it may be automatic if you live in a community property state.

Move the property into a revocable living trust before you die. Your trustee can then assume ownership after you die, without the property going through probate. (Create a revocable living trust with step-by-step guidance through Policygenius.)

File a transfer-on-death deed for the property if your state allows it. Make sure to record the deed (file it) with your country clerk or land records office. A transfer-on-death deed is also called a TOD deed or a beneficiary deed. Read our guide to transfer-on-death deeds.