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What is ancillary probate?

Nowadays, many people own property outside of their home state. Whether their family has a cabin or a vacation home, the out-of-state property can provide a nice getaway from everyday life for everyone in the family. 

But what happens to this property if your loved one who owned it passes away? 

No one wants to think about what could happen when they lose a loved one, but these complex situations often become a reality for many people. So, here is a brief overview of how to handle out-of-state properties in probate.

Property out-of-state requires ancillary probate

It is a general rule across the country that all real estate properties must go through probate in the state where they are located.

Therefore, families usually have to open two separate probates:

  1. Main probate occurs in your loved one’s home state, or where they actually lived. Courts determine where to file the main probate based on where your loved one was registered to vote, which driver’s license they had and where they received their mail.
  2. Ancillary probate is a separate administration to handle the out-of-state property. Families must first open the main probate and validate the will. Then they can offer the will to the other state to begin the ancillary probate process.

How does ancillary probate work?

Ancillary probate works similarly to the regular probate process. The main difference that families must note is that ancillary probate will be subject to the probate laws of that specific state where the property lies. For example, if your loved one lived in California, but owned property in Washington, then the ancillary probate process is subject to Washington’s probate laws. 

To open ancillary probate, individuals should:

  1. Consult with an attorney to handle the ancillary probate effectively
  2. Familiarize themselves with the probate laws of the other state
  3. File the main probate in their home state
  4. Obtain an official copy of the will to begin ancillary probate in the other state

The process of ancillary probate can be complex and time-consuming, but being prepared can make it much easier for your family.

Is it possible to avoid ancillary probate?

Families could avoid ancillary probate if their loved one took measures in their estate plan. There are specific strategies that can handle the property without probate, including:

  • If the out-of-state property has joint ownership or is community property
  • If your loved one established a revocable living trust to pass down the property
  • If your loved one designated the property to transfer-upon-death

Without these measures, families likely will have to open ancillary probate. However, speaking with an experienced estate attorney can help families ensure they protect their rights and their loved one’s property. 

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