What Are Ancillary Probate Proceedings Concerning a Will?

By Heather Frances J.D.

Your will leaves directions about how you want your property to be distributed upon your death, but property distribution gets complicated if you own property in more than one state. A state’s probate courts only have authority to issue decisions about property within that state, so an additional procedure, called ancillary probate, is typically required before property located in another state can be distributed.

Your will leaves directions about how you want your property to be distributed upon your death, but property distribution gets complicated if you own property in more than one state. A state’s probate courts only have authority to issue decisions about property within that state, so an additional procedure, called ancillary probate, is typically required before property located in another state can be distributed.

Domiciliary Probate

A primary probate proceeding, or domiciliary probate, typically held in the decedent’s state of residence, first establishes the validity of the decedent’s will. If the court determines the will is valid, it admits it into probate and appoints an executor to manage the decedent’s estate. Frequently, courts appoint the person named in the decedent’s will to be the executor; this person gathers the estate property, pays debts and distributes any remaining property to beneficiaries according to the testator’s wishes as set out in the will.

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Ancillary Probate

When a decedent owns property located in his state of residence, that state’s courts can issue the necessary orders to distribute the property, but cannot issue orders regarding property located or titled in other states. For example, if the decedent lived in Kansas but owned a vacation home in Colorado, only a Colorado probate court has the authority to address the vacation property. This secondary, or ancillary, probate proceeding is an abbreviated, but necessary, procedure that takes place after the primary probate proceeding in the decedent’s state of residence. Though the basic concepts of probate and ancillary probate are similar across states, each state has its own laws so the process may be somewhat different in each state.

Validity of the Will

Since the primary probate court is responsible for determining whether the will is valid in accordance with that state’s laws, any contests or challenges to the will are heard in that court. Once the primary court decides the will is valid, probate courts in other states will generally recognize the will as valid for their state’s ancillary proceedings. The executor named in the decedent’s will and appointed in the decedent’s state of residence may be appointed as the ancillary administrator in other states.

Property Transfer

During ancillary probate, property owned outside of the decedent’s state of residence is transferred to beneficiaries according to the testator’s will. For example, if the testator’s will distributed his property evenly between four beneficiaries, the property located in the ancillary state will be distributed in quarter shares just like the property in the decedent’s home state. An executor must accomplish this distribution according to the ancillary state’s laws, which may vary depending on the size of the decedent’s estate. For example, Arizona law allows certain estates containing real estate under $75,000 in value to be distributed by a very simplified small estate ancillary procedure, but larger estates require a different, slightly more complicated procedure.

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The Difference Between the Grant of a Probate & an Ancillary Probate

References

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