In this week’s blog post on understanding basic estate planning issues, we turn our attention to ancillary probate. Last week we looked at what the probate process involves. This week we are going to continue that discussion by looking at ancillary probate.
Unlike probate, most estates don’t have to deal with the question of ancillary probate. Nevertheless, it is a significant potential issue with which you should be aware before you go into the estate planning process.
What is ancillary probate?
As we discussed last week, probate is the set of rules and procedures that applies to the property left behind by a deceased person. When you die and leave behind property in Oklahoma or Kansas, a probate court may be required to determine the new owners of such property. Depending on your circumstances, those new owners could be one of your creditors, your children, or another person or organization you identified as a beneficiary in your estate plan.
Probate laws exist at the state level, meaning that each state has different laws. So, if you die in Kansas, the property you leave behind in Kansas will be subject to the probate laws of that state.
But what happens if you own property in more than one state? What happens, for example, if you own a summer home in Florida, or a vacation home in Colorado? Will the laws of the state of Kansas determine what happens to the Colorado house?
Probably not. Unless you have a properly drafted estate plan, property that you own in other states will be subject to the laws of those states. This effectively means that you will have to have an additional probate case for each state in which you own property. Those cases are referred to as ancillary probate cases because they take place in a state other than that in which you reside. (The probate case that takes place in your home state is referred to as the domiciliary probate case.)
What can I do about ancillary probate?
Like other probate issues, ancillary probate questions can be easily dealt with as long as you create the proper estate planning tools in time. For example, just as you can avoid most probate situations by creating and properly funding a revocable living trust, you can usually avoid ancillary probate issues by doing this thing. As long as you take the time to properly plan ahead, ancillary probate issues can almost always be minimized. In many situations you can completely avoid the necessity of your estate having to go through any ancillary probate processes whatsoever.
Parman & Easterday