Ancillary probate is a probate process that is necessary when a deceased real estate or personal property owner has property in other states. The regulations of the state(s) where the property is located will typically determine what will happen with the property when the owner passes away. State laws where the deceased individual lived when they died do not necessarily govern the ancillary probate process. If you’re a California resident, here are some important things you should know about ancillary probate.
Defining ancillary probate
Ancillary probate is a proceeding that is necessary during primary probate; it will occur in a state other than the decedent’s home state, because the primary probate occurs in the state where the decedent resided. Ancillary probate is essential because the court in the decedent’s home state does not have the legal right to determine how the decedent’s property is distributed in other states.
For instance, if you live in California but have real estate in Arizona, your Arizona property can’t be probated in California. The ancillary probate principle also applies to personal valuables such as airplanes, automobiles, and boats titled and/or registered in another state.
How does the process work?
The executor/administrator for the probate proceeding in the state where the decedent was residing at her/his death must first file a probate in that home state. If there are assets in another state, the same administrator (in most cases) may then file to act as administrator/executor in the non-home state. The executor will need an attorney in that state to represent her/him for the ancillary probate matter.
Other states will almost certainly accept the terms of the will once the home state accepts the terms, because the “Privileges and Immunities Clause” of the U.S. Constitution requires sister states to honor the fundamental property rights of each state’s citizens. There are some rare exceptions where this may not be the case. The probate in the ancillary probate must come to an end before the probate in the decedent’s home state is complete. Thus, the ancillary probate process often results in a longer probate process, but it is necessary in order to complete the administration of a decedent’s estate.