When someone dies there is a legal process through which their estate must go in order for their property to be passed on to their heirs. This process is known as probate. It typically involves identifying the person’s property and determining its value, paying off remaining debts and taxes owed, and finally distributing the property that is left to the heirs or beneficiaries. But what happens when some of that property is located in another state? That is when the “ancillary” probate process is required.
What does ancillary probate mean?
Ancillary probate is basically a normal probate proceeding except that it involves property from a different state. So, if you live in Colorado for instance, and you have a summer home in California, then California’s ancillary probate process would be required to handle the summary home. In other words, regardless of where you may be residing at the time of your death, any real estate you own must be probated in the state where that property is actually located. This rule only applies to real estate, though. Having real property in a different state than your state of residence means your estate must go through two separate probate proceedings.
California’s probate code on ancillary proceedings
California Probate Code §12501 defines ancillary administration as “proceedings in this state for administration of the estate of a non-domiciliary decedent.” California Probate Code §12505 defines a “non-domiciliary decedent” as a person who dies “domiciled in a sister state or foreign nation.” Code §§12500-12591 provides the rules regarding treatment of the estates of non-domiciliary decedents, as well as distribution of property to a sister-state personal representative (California Probate Code §§ 12540-12542) and collection of personal property of a small estate by a sister-state personal representative without ancillary administration (California Probate Code §§ 12570-12573).
Foreign Domiciliary or Non-Domiciliary
In California, a “foreign domiciliary” or “non-domiciliary” refers to an individual who died as a resident of another state but who had property in California. The most common situation is a non-domiciliary who owns a vacation home in Southern California. In that situation, the procedure is pretty straightforward. A copy of the Will and the order admitting the will to probate are certified as a true and correct copy by a public employee, usually the court clerk.
“California Domiciliary” refers to someone who dies as a resident of California while having additional property in another state. The primary estate is probated in California and the ancillary probate is filed in the state where the separate property is located. Sometimes there is a legal question as to where the decedent actually resided at the time of his or her death.
The legal definition of “reside”
It is not always so easy to determine where an individual was residing at the time of their death. In some situations, a case can be made for two different states. The factors used to determine the state of residence include:
- Where the decedent actually lived
- Where the decedent was registered to vote
- Where their driver’s license was issued
- Where they received their mail
How you can avoid ancillary probate
If you want to be sure your family avoids the expense and complication of the ancillary probate process, there are several options available. In fact, there are certain types of property ownership that will allow them to avoid ancillary probate altogether, including:
- joint tenancy ownership and tenancy by the entirety
- transferring the property to a revocable living trust
- Recording a transfer-on-death deed for the property
To determine all of the options available to you, consult with a probate attorneys in the state where your other property is located.
Using a Revocable Living Trust to avoid ancillary probate
Living trusts can be very useful in avoiding probate because they keep your property from becoming part of your probate estate. When property, including real estate, is transferred to a trust it is the trustee who actually owns the property. Therefore, there is no need for that property to be probated.
Transfer-on-death deeds can also avoid ancillary probate
Another way to avoid ancillary probate is to record a transfer-on-death deed for that property. This type of deed identifies the individual you have selected to receive the property. Upon your death, the property will be transferred directly to your named beneficiary without the need of going through probate.
If you have questions regarding ancillary probate, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.
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