Ancillary Probate & Legal Procedures
Ancillary probate refers to probate conducted in a second state. Generally, probate is conducted in more than one state when a decedent owned certain property in another state that will pass through probate. Real estate is the most common form of property requiring ancillary probate proceedings, but ancillary probate may also be necessary for property such as a car or boat registered and titled out of state, livestock, or oil, gas, or mineral rights attached to an out-of-state property. This property is governed by the law of the state where it is located, rather than the law of the state where its owner lives.
Concurrent Proceedings
An executor will typically first open a probate case in the decedent’s state of residence and then open a second probate case in the state where the out-of-state property is located. The second probate proceeding is called the ancillary probate proceeding, while the first proceeding may be called the domiciliary proceeding. For example, Donovan, as the executor of his father’s estate, opens a probate case in Indiana, where his father primarily resided. However, Donovan’s father also owned a small vacation home in Florida. Donovan will probably need to open an ancillary probate case in Florida in order to sell the vacation home or transfer it to a beneficiary. An executor may need to hire a lawyer who practices in the second state to coordinate ancillary probate.
Ancillary Probate Requirements
In some states, an executor will be allowed to file their executor authorization (sometimes called their "letters") from the first state along with a copy of the will, if any, instead of petitioning the second court for authorization. If an executor is allowed to bypass filing an entirely new probate petition this way, they are often known as a "foreign executor." The executor typically must also file a copy of the will with the second court. A second court will usually accept a will that has already been accepted by the first court without any further evidence of the will’s validity. The second probate court may refer to a will first accepted by another state as a "foreign will."
There is no benefit to ancillary probate proceedings. In fact, an executor will need to account for additional court costs and attorneys’ fees. However, ancillary probate is often unavoidable if a decedent left certain property in another state that must pass through probate.