Ancillary Probate

No two probate situations look exactly alike. To that end, the process of administering an estate can prove dramatically different even when, at first glance, that estate seems perfectly ordinary. Because small complications can bring so much stress to those who have lost loved ones, it’s important to be aware of the many forms that probate can take — and when a particular approach to probate administration is more or less likely.

One of the most unexpected options for probate to keep on your radar? Ancillary probate administration. While this is only relevant or required in select situations, it’s distinct enough to warrant special attention. It’s typically required when the person who has passed away (the decedent) owned property in multiple states. It’s a common setup that can bring a lot of joy while the estate holder is alive — and one that can make life a lot more difficult for loved ones when that person passes away.

If you anticipate extra complications due to property in multiple states, it’s absolutely vital that you work with a trusted legal representative. You’ll understand why this is so important once you realize just how complicated ancillary probate administration can be. To that end, we’ve compiled a guide to all things ancillary probate.  Keep reading to learn what ancillary probate administration is, how it works, and why it exists. 

 

What Is Ancillary Probate Administration?

With probate, the term ‘ancillary’ refers to any secondary property that the decedent owned outside of his or her primary estate. This is typically located in another state. Meanwhile, the ‘domiciliary’ exists in the state in which the decedent permanently lived. When both domiciliary and ancillary estates exist, separate and simultaneous probate processes may occur to ensure that both estates are properly settled. 

A common example of ancillary probate involves ‘snowbirds’ who own property in a northern location (where they primarily live during the summer months) and then head to Florida to enjoy warmer conditions during the winter. Property in, say, Wisconsin, cannot be probated in Florida — or vice versa. 

 

What Makes Ancillary Probate Administration So Complicated?

Probate administration is inherently complicated — even when the decedent didn’t have extensive assets at the time of his or her death. Still, there are nearly always debts to pay and assets to distribute. Add extra property to the mix — plus the distinct procedures from other states — and it’s easy to see why probate so quickly comes to feel overwhelming.

The separate probate processes are required simply because the domiciliary state lacks the legal jurisdiction to transfer property from another estate. In an ideal situation, both states would work together to streamline the process — but often, administration involving multiple estates is far costlier and more time-consuming than executors and beneficiaries prefer. Those extra court fees can add up quickly, leading to an expensive process that can deplete the estate’s remaining reserves. 

 

What About Summary Ancillary Probate?

As with other forms of probate, administrative processes for ancillary cases typically fall into one of two main categories: summary or formal administration. Summary administration is not typically available when ancillary probate is required, as it’s typically relevant for lower-value estates. That being said, summary ancillary probate administration may be available if the decedent passed away over two years ago. This can at least somewhat simplify the process, although ancillary status will always make things more complicated. 

 

Is It Possible to Avoid Ancillary Probate Administration?

Ancillary probate administration is a dreaded proposition, but it’s not always inevitable. With the right approach, it’s possible to avoid this complicated and frustrating process. This will never be required if the person in question only has property in one state, but it may also be realistic to avoid ancillary probate administration when property exists in multiple locations.

The added effort of preventing ancillary probate is definitely worthwhile if it expedites the general administration process. The goal, of course, should be to leave beneficiaries with the full extent of their inheritance, rather than sacrificing these assets to protracted probate concerns. 

 

Creating a Trust

One of the most reliable methods for preventing ancillary probate involves placing the property in question in a revocable living trust. When a trust is utilized, probate is no longer necessary — so this is a great option for preventing not only ancillary probate, but also, probate in general.

This strategy is effective because it ensures that the trust retains the property title. The trust then continues after the death of the estate holder, so probate is not required. Of course, it’s important to work with a respected estate planning attorney, as a DIY approach may not provide sufficient protection. 

 

Retitling Property

If creating or maintaining a trust is not a viable solution, your best bet may involve retitling any property that is located in other states. Under this approach, both the original estate holder and the beneficiary would hold ownership as joint tenants — with, of course, the rights of survivorship. As a result, the intended beneficiary can receive the property in question when the original estate owner passes away, even if probate does not occur. 

In Florida, there is joint ownership involving rights of survivorship as well as tenancy by the entirety, which is joint ownership between spouses. As with forming a trust, this is best undertaken under the careful supervision of an estate planning attorney, who can help you avoid a potentially damaging mistake: accidentally forming a “tenancy in common.” 

 

Take Action to Avoid Or Expedite Ancillary Probate Administration

Ancillary probate administration is best avoided when possible, as it brings a lot of costs and complications to the probate process. Legal guidance can make a world of difference as you make every effort to prevent these concurrent procedures. If, at this point, it’s no longer possible to avoid ancillary probate, legal assistance will still prove valuable.

Don’t underestimate the importance of working with a trusted professional as you seek to mitigate whatever complications probate sends your way.