As most people already know, probate refers to the court proceeding through which your property is transferred to your heirs after your death. There are several steps involved and they are typically the same in every court. If you are an Orange County resident, these proceedings will take place in the Orange County probate court. However, there may be additional proceedings required if your estate includes property located in another state. In those situations, Orange County probate ancillary proceedings may be necessary.
Why are Orange County probate ancillary proceedings required?
In situations where the deceased has real estate located in a state different from their state of residence, probate proceedings are necessary in more than one state. If, for example, you are a resident of Montana at the time of your death but you have a vacation home in Huntington Beach, you may need Orange County probate ancillary proceedings. Ancillary proceedings are required whenever you own property in a state other than your state of residence and those proceedings are separate from the primary probate proceedings in your home state.
California’s probate code governing 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 the 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 vs Non-Domiciliary
In California, the terms “foreign domiciliary” or “non-domiciliary” refer to the same thing — an individual who was a resident of another state at the time of their death 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.
What is 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 can you avoid Orange County probate ancillary proceedings?
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 attorney 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.
Using Transfer-on-death deeds to 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.
Download a FREE estate planning worksheet today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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