Upon the death of a person without an estate plan or only a last will and testament as a testamentary document, their estate must go through the probate process or their will must be submitted to the Surrogate’s Court located in the county of their death and deemed valid in order to be legally binding. This process becomes trickier, however, if the person owned property or wrote a will containing property located in two or more different states. If, for instance, a person dies with a primary residence in New York and a vacation home in Florida and wants to pass both on to their inheritors through a will, a process known as ancillary probate will have to occur. Ancillary probate is the process by which secondary probate proceedings are initiated in state’s outside of the decedent’s official state of residence where they may have owned property. This process can be similarly lengthy to the probate process in one’s home county and can impede the access the decedent’s family and inheritors have to their assets after their death. There are several steps you can take to understand the ancillary probate process and how to avoid it, and chief among them is enlisting the services of an experienced estate planning attorney like Inna Fershteyn. An experienced estate planning attorney will create a comprehensive estate plan that accounts for all property you own and ensures a quick and easy resolution for your loved ones and inheritors after your death.
Similar to the probate process, ancillary probate takes place after the death of a person with no estate plan or with only a will as a testamentary document. All wills must go through the probate process in the Surrogate’s Court located in the county of the decedent’s residence, which are known as domiciliary proceedings, and this process can in itself be lengthy and expensive. Ancillary probate is a concurrent probate proceeding that takes place in the event a person has property in a state or state’s outside of their primary residence. The property a person owns in another state will likely be real estate, yet this can apply to motor vehicles, planes, or boats registered in another state or the rights attached to a property owned by the decedent. Ancillary probate proceedings must take place when a person owns property in a state outside of their domicile because each state has different probate and inheritance laws.
Once a person dies, the executor of their estate must petition the Surrogate’s Court in the county of their residence to initiate probate proceedings. Once the probate proceedings in the decedent’s state of residence are underway, ancillary probate proceedings in the other state(s) where the decedent owned property may be initiated. The Surrogate’s Court(s) in the state(s) where ancillary probate proceedings are initiated will typically accept letters testament from the state where domiciliary proceedings occur declaring a will valid or appointing an executor to administer an estate. After this, the property in the states where the ancillary probate proceedings occurred will be distributed according to the decedent’s will or according to the state’s inheritance laws in the event there is no will. In the event the state(s) where ancillary proceedings occur does(do) not accept letters testament or executor appointments, then the ancillary probate process will be lengthened. Domiciliary and ancillary probate proceedings can become lengthy and costly processes, so creating an estate plan that avoids them is the best possible way to save your loved ones and inheritors the time and effort they will entail and guarantee them quick and easy access to the assets you wish to distribute.
How To Avoid Ancillary Probate
Avoiding ancillary probate requires planning and careful consideration when purchasing or registering property in states outside of your primary residence. There are several ways one can avoid having to initiate ancillary probate proceedings:
- Ensure that property in states outside your primary residence is jointly owned and, if necessary, retitle the property so that it passes to the inheritor of your choice after your death.
- File a transfer-upon-death deed for property in states outside your primary residence if that state allows it.
- Transfer the property you own into a living trust, whether it be a revocable or irrevocable trust, so that it is passed to your inheritors without the need from domiciliary or ancillary probate proceedings. Ensure that you understand that property transferred into a trust is no longer legally yours.
- Consult with an experienced estate planning attorney to create a comprehensive estate plan that will not require approval from a Surrogate’s Court in order to disburse your assets to your beneficiaries.
The death of a loved one is a difficult enough occurrence, and the probate process could potentially prolong the grief your loved one’s and beneficiaries feel if there are difficulties incurred in validating your will or appointing an administrator for your estate. This probate process can be prolonged even further by ancillary proceedings in other states where you owned or registered property. This prolonged grief and uncertainty can be avoided if you understand the domiciliary and ancillary probate processes, know what they entail, and know how to avoid them. Understanding the ancillary probate process and how to avoid it will be made easier by the counsel of an experienced estate planning attorney. To create an estate plan that avoids the ancillary probate process and ensures your assets are distributed easily and according to your wishes, call the Law Office of Inna Fershteyn at (718) 333-2394 to schedule a consultation and give yourself the peace of mind you deserve.