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

By Valerie Stevens

Probate is the legal process for settling a person’s financial affairs when she dies. Some states require the probate of a deceased person’s estate whether or not she has left a will. In other states, probate is not required when a person died with little property. A grant of probate is permission from the court to proceed with probate administration. Ancillary probate is a probate estate set up to deal with property the deceased owned in a state other than his home state.

Probate Process

When a person dies, the probate court makes sure that his taxes, funeral bill and other debts are paid before any property and assets are distributed to beneficiaries. In most states, there are two kinds of probate estates: an informal and a formal probate. The net worth of the probate estate typically determines whether the probate is formal or informal. The net worth of the probate estate is not always the same as the net worth of the person. Assets that have a named beneficiary, such as a life insurance policy or a trust, can usually pass outside of probate even though they have to be declared to the court during the probate process.

Grant of Probate

To begin the probate process, a relative or associate of the person must apply to the court to be the executor or personal representative and administer the estate. This person is often named in the deceased’s will, but she must still go through the application process. When the probate court receives an application or petition for probate, the court verifies that no one else has started a probate proceeding and, if the petition is approved, issues a grant of probate. In some states, this is called a certificate of appointment or letters of appointment.

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Ancillary Probate

Probate administration is carried out in the deceased’s home state. However, some people live in two states, such as retirees who live in the Northeastern U.S. during the warm-weather months and the South during the cold months. In this case, the court must determine in which state the deceased is domiciled -- that is to say, where he was a permanent resident. The primary probate estate is opened in the domicile state and an ancillary probate must be opened in the second state and any other state where the deceased owned property.

Executor

Who can serve as the executor or personal representative of the ancillary probate depends on which state the property is in. Some states allow the primary executor to administer the ancillary estate. Other states require that the executor of an ancillary probate be a resident of that state. Usually, the property that is a part of the ancillary estate is transferred to the primary estate in the home state, rather than being distributed directly to beneficiaries.

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Florida's Law for Death and Estate Inheritance
 

References

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