Probate travels out-of-state for estates in multiple states  

On Behalf of | Nov 20, 2019 | Probate Litigation

When someone dies owning property in multiple states, their estate may need to go through probate in each of those states. To many people, probate is about complex laws and calculations, the death of a loved one and court battles. The chance to have multiple probate proceedings does not help.

There is some good news for multistate probate. It may not be as bad as it sounds. And with good planning, your estate might avoid it completely.

When property is both here and there

An estate often needs “ancillary” probate if the deceased owns land or a house in another state, specifically, kinds of property governed by the laws of that other state.

Real estate is the typical case for ancillary probate because, for example, the Michigan lake cabin and the land that goes with it are part of Michigan and are subject to that state’s laws.

Usually, the guitar a parent kept at their sibling’s house in Chicago will not need ancillary probate.

Probate begins at home

Probate will need to start in the deceased’s home state, their domicile, for what is often called “domiciliary probate.”

There, the typical process has the court deciding if the will is valid and appointing an executor. The executor gathers up all the assets and pays off all the debts and distributes the remaining assets.

Ancillary probate usually gets easier

The state that hosts, for example, the person’s second home then begins its probate process (“ancillary probate”). It tends to be simpler simplified the ancillary state usually accepts the documents and decisions of the domicile state, such as their validity of the will and choice of executor.

There are many opportunities for conflict and complications, and most people hire an attorney in the second, ancillary state to keep an eye on that state’s laws and procedures.

Avoiding ancillary probate

Property owners have three ways to try to avoid ancillary probate:

  • Own the property as a joint tenancy with the right of survivorship. The death of one owner instantly makes the survivor the sole owner.
  • Create a living trust instructing the fate of the property upon your death.
  • The ancillary state may allow a transfer-on-death deed.

These measures are, of course, things the owner must do while still alive.


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