You might be concerned that a vacation home or other property you own out of state will be hard to distribute to your heirs.  Alongside the probate in your home state, another, ancillary, probate court process might need to occur.

Ancillary probate can present some challenges. 

As you plan ahead, these are a few of the things we encourage you to think about.

Potential Pitfalls of Ancillary Probate

The drawbacks of ancillary probate include additional costs and potential delays in settling your estate. For example, your executor might need to hire another lawyer in the state where your property is located and face filing and accounting fees.

If you pass away without a valid last will and testament, known as intestate, ancillary probate proceedings could also become difficult.  Every state law is a little different, so if there was no will, the laws of the state could determine who receives the deceased’s property. Further complicating the issue, the rightful heirs in another state where ancillary probate proceedings occur may turn out to be different than those in the state where the deceased lived.

Possible Shortcuts with Ancillary Probate

The ancillary probate process can be more simple for executors who are already going through probate in the state where the deceased lived.  For example, the executor might just need to file letters of authorization and a copy of the will in the home state to avoid having to be appointed executor in the second (or third) state.  It’s best to see what applies in the states involved and to first speak with your attorney who is handling the primary probate representation.

If possible, consider alternatives to ancillary probate.  

Small estate proceedings could be an option if the property isn’t too valuable.  Other ways to avoid ancillary probate may include:

  • putting the property in a trust agreement (whether or not a will already exists)
  • a transfer-on-death deed
  • adding a co-owner to the title or joint tenancy with the right of survivorship
  • selling or transferring the property before death

Bear in mind, that the latter options for this alternative to probate can cause their own issues with uncompensated transfers within your long-term care planning. This is a topic we encourage you to reach out to us on so that we may plan for it together through your estate plan.

There’s sometimes more than one way to go about ancillary probate.  In your estate planning, review your options to make probate easier for you and for your loved ones. As always, if you have any questions, feel free to contact us.