Ancillary Probate: What it is and How to Avoid it

Question:  My mother is a resident of Florida and owns a condominium and several financial accounts in her sole name. She also owns a summer home in New York that is titled in her sole name.  If she were to pass away, what is the procedure to transfer the New York home after her death?

Answer: Real estate is governed by the laws of the state where it is located. The old saying is that where you own dirt you have to probate a will. Therefore, if a person dies owning real estate in two different states, the Executor would have to probate the Last Will & Testament in the decedent’s home state and commence an “ancillary” probate proceeding in the State where the other real property is located.  In your mother’s case, her estate would first be probated in the Florida courts.  The ancillary proceeding would be commenced in the county in New York where her summer home is located.

The term “ancillary proceeding” refers to a probate or administration proceeding that is required in addition to the primary probate or administration proceeding that will take place in the decedent’s home state. Typically an ancillary proceeding is necessary because a decedent owns real estate located outside of their home state. An ancillary proceeding could also be necessary if the decedent owned personal property, such as a car, boat, or airplane that is registered and titled outside of their home state. The laws of the state where the real estate property is located will govern what will happen to the property that is located in its borders.

An ancillary proceeding necessitates additional costs, including court filing fees and attorneys’ fees.  Another drawback of an ancillary proceeding occurs when a person dies “intestate”, meaning that the person died without a Will. Since intestacy laws vary among the fifty states, it is possible that the persons who inherit the property each state proceeding are different or inherit the property in different proportions.

Your mother could avoid an ancillary estate proceeding by creating a revocable trust and titling her assets in the name of the trust.  Upon her death, the trust would govern the distribution of the real and personal property to her beneficiaries and her estate would not be subject to the expense and inconvenience of probate proceedings in two states.

Learn more about estate planning here, and elder law here.

– Kera Reed, Esq. and Nancy Burner, Esq.