Most families assume that when a loved one passes away, probate happens once, in the state where the deceased lived. That’s often true. But when someone owns real estate or certain other assets in a state different from where they resided, a second probate process may be required in that other state. That process is called ancillary probate, and it catches a lot of families off guard.
Our friends at Hirani Law walk clients through this regularly, and what a probate lawyer will tell you is that ancillary probate is one of the more time consuming and costly surprises that can come up during estate administration, and that it’s almost always avoidable with the right planning in place beforehand.
Why Ancillary Probate Exists
Each state has jurisdiction over real property located within its borders. When someone dies owning real estate in another state, that state’s courts have authority over how that property gets transferred. The primary probate, opened in the deceased’s home state, doesn’t automatically extend its reach across state lines.
So if someone lived in Illinois but owned a vacation home in Florida and a rental property in Arizona, the family may be looking at three separate probate proceedings in three different states. Each one follows that state’s own rules, timelines, and fee structures.
What the Process Actually Involves
Ancillary probate generally mirrors the primary probate process but is limited in scope to the out of state assets. A personal representative, sometimes called an executor, typically needs to be appointed in the ancillary state as well. That may or may not be the same person handling the primary estate depending on that state’s requirements.
The ancillary proceeding involves:
- Filing a petition with the probate court in the state where the property is located
- Providing documentation from the primary probate proceeding
- Notifying creditors in that state according to local requirements
- Obtaining court approval to transfer or sell the property
- Closing the ancillary estate once all obligations are satisfied
Each of these steps takes time, and when multiple states are involved the overall estate settlement timeline can stretch considerably.
How to Avoid It With Planning
Ancillary probate is not inevitable. There are several planning strategies that can keep out of state property out of the probate process entirely. Holding real estate in a revocable living trust is one of the most straightforward approaches. When property is titled in the name of a trust rather than an individual, it passes according to the trust terms without going through probate in any state.
Other options include transferring property into an LLC or using a transfer on death deed where the state allows it. The right approach depends on the nature of the asset, how it fits into the broader estate plan, and the laws of the specific state where the property sits.
Taking Action Before It Becomes a Problem
If you own real estate or other significant assets in more than one state, that’s worth raising with an estate planning attorney sooner rather than later. The planning tools that prevent ancillary probate are straightforward when put in place proactively. Addressing it after the fact, in the middle of an already difficult time, is considerably harder and more expensive. Reaching out now gives your family a much cleaner path forward.