Did you know owning property in one state when you live in another one can present difficulties in your estate planning if you only have a last will and testament, or no estate planning at all? Unfortunately, this is a focus of conversation that many of us do not contemplate until it is too late to effectively plan for our estate.
Knowing that it could be an issue, you may have concerns. You may wonder how the probate court will handle distributing your property outside your state or about placing an additional burden on your loved ones at an already stressful time. You may also want to know if taking the extra step to plan for your property outside your state of residency now is even necessary.
This is where the ancillary probate process comes into play.
The probate laws of each state control how real estate and other assets are distributed after someone dies. An additional, or ancillary, probate process may be necessary if your out-of-state property, such as a car, a vacation home, or even the right to mine oil or gas on land, is titled in the second or third state.
Generally, the probate process begins when a last will and testament is filed in the state you live. Whether a person’s estate will need to go through ancillary probate typically depends on the status of the property he or she owns and the state laws pertaining to the transfer of this property. The probate court in the state where your property is located may need to accept or admit the will with your out-of-state property, if there aren’t any challenges, as a “foreign” will. The out-of-state court may then also accept it or have its own independent process.
The executor or personal representative named in your will needs the same powers and responsibilities in each state for authority over the property. The ancillary probate process is often shorter than the one in the primary state, however, the executor of the primary last will and testament will most likely need a lawyer in the second, or third, state to handle the procedure.
Ancillary probate might not be required, however, if you plan ahead. With the guidance of your home state attorney, you may choose to take early measures to create a funded trust agreement or to transfer the ownership of the property during life. Remember, state regulations differ, so it’s best to talk to your estate planning attorney to determine how your specific circumstances apply in each of the locations involved.
If you have any questions about ancillary probate, don’t hesitate to contact us to schedule an appointment with attorney Alan Hougum. It is important to make sure your assets are transferred to your heirs and are protected the right way, without confusion and hassles for your loved ones.
