Ancillary Probate

The simple answer is that there will need to be a separate probate proceeding in each state in which the decedent owned real property, aka real estate. If the real estate was owned in the sole name of the decedent, only the appropriate court in each state can authorize the distribution or sale of real property owned by a decedent in that particular state.

Upon the death of the decedent, the proper procedure is to first initiate the domiciliary probate in the state in which the decedent was domiciled at the time of death. Often the last known address listed on the death certificate is utilized to determine which state is the appropriate venue for the domiciliary proceedings. A petition for probate will be filed in the county of last residence. The domiciliary probate will control all real property located in that state, as well as all tangible and non-tangible personal property located anywhere in the United States. The vast majority of estate property is generally controlled by the domiciliary probate, including most liquid assets such as bank and brokerage accounts.

Any real property, aka real estate, owned in a state other than the domiciliary state, will require a second probate initiated in that other state, referred to as an “ancillary probate proceeding.” The ancillary proceedings should always start after the domiciliary probate is underway, since exemplified or certified copies of the domiciliary proceedings will be filed in the ancillary states. In order to obtain clear title to potentially sell the real estate while in the name of the estate, or at some future time, a title company will require that the necessary probate proceedings be conducted to document proper chain of title. It is not uncommon for families to avoid the probate process for many years after the death of a family member, choosing to instead live in the home without removing the decedent’s name from the house. The family is then forced to conduct a probate many years down the road when it comes time to sell the piece of real estate. Waiting extended periods of time to initiate the probate process can create significant problems, chief among them is the possibility that beneficiaries will also pass away, which can create a situation in which multiple probates must be conducted simultaneously in order to clear title.

The first step after arranging the funeral or cremation is to contact a knowledgeable probate attorney to initiate the court proceedings associated with the probate. An attorney can be located online, or by requesting referrals from a local attorney that the family members may already have a relationship with. Often an initial consultation with the probate attorney over the phone is all it takes to determine what type of probate is necessary and to initiate the engagement by executing a fee agreement. All the pleadings required to initiate the probate can be drafted and emailed to the client for their review and execution. Once the executed pleadings are sent back to the attorney, they will be e-filed with the probate court.

1. Order copy of death certificate from funeral home or online (vitalcheck.com) 2. Get mail forwarded 3. Collect financial statements and creditor correspondence 4. Contact banks to inform them of passing and freeze accounts 5. Cancel credit cards

Probate is the legal process of settling a person’s estate after they have passed away.

In general, a decedent’s estate will need to go through probate whenever he or she died owning property in their sole name, without beneficiary designations.

If the decedent owned real property, aka real estate, in states other than their home state when they passed away, this property will have to undergo an additional probate procedure called ancillary probate.