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2011 LexisNexis Top 25 Estate Planning and Elder Law Blog

Monday, September 15, 2008

What is Ancillary Probate?

In an increasingly mobile society, individuals are owing property in more than one state. Whether it be the lake cabin in Wisconsin, the condo in Florida or an interest in the family farm in North Dakota, owning such property may complicate matters for those you leave behind.

When real property located in another state is "disposed" of (fancy lawyer language for "given") in a will, a separate probate proceeding in that state will have to be commenced. This type of probate is typically called "ancillary probate" (more fancy lawyer language for additional probate in another state that is secondary to the main probate occurring in the state of the decedent's death or domicile). This will require the payment of additional court fees and hiring of local counsel to appear on behalf of the estate. All of this will cost your estate money.

Additionally, ancillary probate might not be able to be started until certain steps are completed in the primary probate occurring in the home state. Ancillary probate, once begun, will also be subject to the calendar of that court, which may cause further delay in wrapping up the probate of the estate.

Another issue is that some states require that personal representatives meet certain conditions, such as residency, that your home state doesn't require. That could mean that the person you've given the power to deal with your estate won't make the cut in another state. In such a case, the court in the ancillary state may appoint another person or a professional to administer the estate, which may cost your estate even more money.

There are ways to avoid ancillary probate which require careful planning in disposing of the property outside of the will. If you have property in another state, let your estate planner know about it. Your estate planner can work with another attorney in the state where the property is located to make sure your estate is dealt with as efficiently as possible, both in time and money.