In the United States, ancillary probate is a second probate conducted if a deceased person owns property in a state other than the state of residence recorded at the time of death. More generally, people who die with property in a different country, province, or other unit of government may also require a second probate. This property cannot be probated in the state of residence because different laws may apply. For example, if someone dies in California while owning property in Hawaii, the estate must be probated in California and a second ancillary probate is done in Hawaii to process the property there.
A variety of types of property can be subject to ancillary probate. In addition to real estate, any property registered in a different state is also subject to ancillary probate. This may occur, for instance, when people register property like cars and boats for tax, insurance, or other reasons in another state. This property must be probated in accordance with the laws of the state where it is held. If someone dies intestate, or without a will, the results of the secondary probate depend on the laws in the state where the property is located.
People can only avoid ancillary probate by not owning or registering property in different states. There are some reasons to avoid it, if possible, including the added expense of having to conduct more than one probate proceeding, along with the extra time needed to handle property out of state. However, inheritance laws may be more favorable in one region than another, potentially outweighing the concerns. These issues can be considered during estate planning procedures so people can make the most beneficial choices for their heirs.
Individuals who own property in other states should make sure it is clearly listed and described in the will. If the will names an executor, it should specify if a different executor is to be used for the ancillary probate, and information about where the relevant records are being held is vital to include as well. During estate planning, it can be helpful to establish a relationship with an attorney in a state where ancillary probate will be necessary and to deposit copies of the will and other records with that attorney to smooth the probate process.
Conducting ancillary probate can add to the executor's responsibilities considerably. People naming an executor in advance should meet with the executor to discuss the responsibilities associated with the estate. If the executor is concerned about the level of work needed, it may be advisable to select someone else or to appoint multiple executors to handle different aspects of an estate.
