Ancillary Probate Explained

If a loved one passed away and owned property in another state, you might need to go through ancillary probate. This process can feel confusing at first. However, once you understand the basics, it becomes easier to manage.

In this guide, we’ll explain what ancillary probate is, why it happens, and how to handle it step by step.

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What Is Ancillary Probate?

Ancillary probate is a legal process. It happens when someone dies owning real estate or property in a state different from where they lived. Even if a person had a will, their estate may need to go through ancillary probate in the other state.

For example, if someone lived in New York but owned a vacation home in Florida, their estate would go through primary probate in New York and ancillary probate in Florida.

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Why Does Ancillary Probate Matter?

Probate gives courts the power to transfer property from the deceased to the heirs. Each state has its own laws. So, a court in one state can’t decide what happens to property in another state.  It lets the court in the second state approve the transfer of that out-of-state property.

When Do You Need It

You typically need ancillary probate when:

• The deceased owned real estate in another state.

• The property was only in their name.

• There was no trust or other method to transfer the property outside of probate.

If the out-of-state property was in a trust or had a transfer-on-death deed, you may not need ancillary probate. These tools help avoid probate altogether.

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How Does it Work?

The process may vary slightly from state to state, but here’s a simple version:

1. Start Primary Probate First

You must open probate in the state where the person lived. This is called domiciliary probate or primary probate.

2. Get Certified Copies of Probate Documents

Next, the court in the primary state gives you certified copies of the will and other paperwork. You will need these for the second state.

3. File for Ancillary Probate in the Second State

After you have the paperwork, you file it with the probate court in the second state. This is where the out-of-state property is located.

4. Transfer the Property

Once the second court approves the paperwork, they allow the transfer of the property. Then, the executor can sell the property or give it to the heirs, depending on the will.

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How Long Does it Take?

The time it takes depends on:

• The state’s probate laws

• Whether the will is valid

• If anyone contests the will

• How quickly paperwork gets filed

In some cases, it may take a few months. In others, it could take longer, especially if there are delays or errors.

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Can You Avoid Ancillary Probate?

Yes, in some cases. The best way to avoid it is by planning ahead. Here are a few options:

• Living Trust: Property placed in a trust usually does not go through probate.

• Joint Ownership: If two people own property together, it may pass directly to the survivor.

• Transfer-on-Death Deeds: Some states allow you to name a beneficiary for real estate. This allows the property to skip probate.

If your loved one did not use these tools, ancillary probate is often the only option.

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Who Handles Ancillary Probate?

Usually, the executor or personal representative from the primary probate also handles both. However, some states require you to hire an attorney in that state.

That’s why it helps to check the rules of the second state before you file anything.

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How Much Does Ancillary Probate Cost?

Costs vary by state. They may include:

• Court filing fees

• Attorney fees (if required)

• Document fees

• Property appraisals

Some states charge more than others. If the property is worth a lot, it may be worth getting legal help to speed things up.

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Final Thoughts

Ancillary probate may sound complicated, but it follows a clear process. If someone owned real estate in more than one state, this extra step makes sure everything transfers correctly. While you can avoid it with careful planning, many people don’t set that up before passing away. So, if you’re dealing with this now, know that you’re not alone. Many families go through it every year.

If you’re unsure where to start, consider speaking with a probate lawyer in the state where the property is located. They can help guide you through the process.