Ancillary Probate: What It Is and How to Avoid It

When someone dies, their estate – unless it has been carefully structured to avoid the process – typically has to go through probate. Probate allows for the deceased’s final debts to be paid and their remaining assets to be properly transferred to their beneficiaries or heirs.

Sometimes, however, the decedent owns property in more than one state – and ancillary probate becomes necessary.

What is ancillary probate?

Essentially, ancillary probate is an additional probate process that occurs when the deceased had real estate or other tangible property located in a state other than their primary residence. Probate laws vary by state – and so does the process of transferring real property from one person to another – so a probate proceeding in one state doesn’t apply to property in other states.

Ancillary probate often comes up in situations where people have “summer” and “winter” homes or vacation property that they use a few times a year. However, the need for ancillary probate can also be triggered due to the sole ownership of other tangible property like boats, recreational vehicles and other valuable assets.

Can ancillary probate be avoided?

With some strategic planning, it is possible to avoid ancillary probate altogether. Common strategies include:

• Transferring property ownership to a living trust: This is one of the most popular methods of avoiding probate. The living trust becomes irrevocable on your death, and the property can be passed directly to your chosen beneficiaries without going through probate.
•  Transfer-on-death deeds: Also known as a “beneficiary deed,” this is a legal document that transfers ownership of real estate to your chosen beneficiary at the moment of your death, bypassing probate.
•  Property with the right of survivorship: If you co-own property with someone else as joint tenants with rights of survivorship, the property will automatically transfer to the surviving owner upon your death. This is a practical solution for some married couples, but not right for everybody.

If you’re concerned about the possibility of ancillary probate with your estate, a professional consultation may be in order. There are multiple ways to avoid probate entirely, and experienced legal guidance can help you find the right method for your needs. Contact us online or call today for a free consultation with Pennington Law, PLLC.