Ancillary probate is a secondary process, which maintains a mechanism of two probate processes going on together. The proceedings of this case are slightly different from the usuals. This process comes with some drawbacks as well.
What Is Ancillary Probate?
Usually, this type of case arises when a person dies, and his assets need a settlement. This process includes every type of asset of the decedent. The assets may be property, bank accounts, retirement plans, stocks and bonds, life insurance policies, personal effects, gold etc. All of these come under the usual probate process. Sometimes, the deceased person owns property outside of his or her residing state. Then a parallel probate process goes on in the other state at that time. Another process comes under the main probate case as a secondary process. This mechanism of two parallel probate processes is ancillary probate.
Necessity Of Ancillary Probate
When a deceased person has property in two different states, there appears an ancillary probate. In that case, the usual process is not applicable. For the settlement of the properties of both the states, two similar processes are necessary. The court of the residing state cannot interfere in the property of another state. In that situation, the primary process needs to involve the other state for a secondary estate settlement process. Then, the court of the other state starts the proceedings of the case. Both the processes go on together in the two states parallelly. In the end, the case comes to a fair settlement in agreement with the states, and the process ends. The entire process maintains the state law of the two states. The main purpose of this process is to handle out-of-state property and give that a perfect settlement.
How Does It Work?
At first, the appointed executor collects all the information of the decedent’s assets. The executor initiates the primary process in the domiciliary court. After the initiation, the lawyer confirms the existence of out-of-state property to the domiciliary court. The court opens an ancillary case in the state where the property is located. The domiciliary court provides a foreign will to the ancillary court. After accepting the will, the court initiates the secondary process.
Sometimes, the ancillary court also accepts authorizations from the domiciliary court. In that case, the executor does not have to manage both the process parallel. The ancillary court appoints an executor for the secondary process. In most of the cases, both the court works together towards a fair settlement. Cooperation of the courts of different states can shorten the entire process, and it becomes less troublesome for the executors. The ancillary probate is an abbreviated version of the main case. During the process, both the executors have control over the property. They conduct the process according to their convenience by obeying the state law and the law of intestacy.
Consequences Of Ancillary Probate
There are some major drawbacks of ancillary probate, which are –
- Huge Cost: A considerable consequence is huge expenses. Due to involving two courts and additional executor, the cost becomes higher. The executor may demand more court costs and filing fees. Ultimately, all the court fees and other additional charges lead you to a huge cost.
- Time-consuming: As this process includes two similar court cases; it takes time to settle down. The court process of two states makes the probate lengthy. The beneficiaries have to wait longer for the settlement and to get their inherited property.
- Complexity: The process is a complicated court case itself. When the secondary process comes under that, the process becomes trickier. That is why ancillary probate is a complicated process. Also, the executor may charge extra fees for additional court proceedings and complications.
How To Avoid Ancillary Probate?
There are several ways out to avoid ancillary probate. Firstly, you can transfer all of your out-of-state property before death. You can hold the property in the form of joint tenancy. As per the rule of joint tenancy, the surviving partner can absorb the out-of-state property to avoid ancillary probate. In that case, the decedent does not own any out-of-state asset at the time of death. Another effective way to avoid this is living trust. If the deceased person makes a revocable living trust before death, no ancillary validating occurs. Another tricky process to avoid this is recording a transfer-on-death deed. This process is applicable only if the ancillary state allows.
Conclusion
It is better to avoid ancillary probate. You should prepare the estate settlement of your out-of-state property avoiding this process. For that, you should have a clear knowledge about ancillary probate.
