When someone passes away, their estate usually undergoes probate in the state where they were a resident. However, when the decedent owns property in multiple states, like real estate in California, an additional probate process called ancillary probate may be required. This ensures that any assets located outside the decedent’s primary residence state are properly administered.
What is Ancillary Probate?
Ancillary probate is a legal process that allows a non-resident decedent’s estate to be probated in a state where the deceased owned property, but was not a resident. If the decedent owned real property in California, an ancillary probate proceeding is necessary even if the primary probate process is being conducted in another state.
For example, if someone lived in Texas but owned a home in San Diego, California law requires an ancillary probate procedure to handle the transfer or sale of that real estate. The purpose is to ensure that all of the decedent’s assets, including California property, are properly accounted for and transferred to beneficiaries according to the will or state law.
The Process of Ancillary Probate in California
- Initiating the Ancillary Probate: To start an ancillary probate in California, the personal representative from the decedent’s primary probate proceeding must file a petition with a California court. This petition will include a certified copy of the letters of administration or letters testamentary from the original probate court.
- Requirements for the California Petition: The petition must specify the California property being probated and may need to include a foreign will (if one exists). The court will then review these documents and appoint the same personal representative to handle the California property.
- Notice and Creditor Claims: Similar to regular probate, notice must be given to heirs, beneficiaries, and creditors. Creditors of the estate may submit claims for debts owed, and these must be settled before the property can be distributed.
- Sale or Distribution of Property: If the decedent’s California property needs to be sold to satisfy estate debts or because heirs cannot agree on how to handle it, the court will oversee the sale. If the property can be distributed in kind (without sale), the personal representative will distribute it according to the decedent’s wishes or state law.
- Closing the Ancillary Probate: Once the estate’s debts are settled and assets are distributed, the personal representative will petition the California court to formally close the ancillary probate process.
Why Ancillary Probate Matters
Ancillary probate may seem like an added complication, but it’s important for ensuring that all aspects of the decedent’s estate are handled properly. If you are dealing with property in California and a probate process is already underway in another state, it’s essential to understand how ancillary probate works to avoid delays and confusion.
How to Avoid Ancillary Probate
For individuals with property in multiple states, there are strategies to avoid the need for ancillary probate, including:
- Living Trusts: By placing real property in a revocable living trust, the property can pass to beneficiaries without needing probate, either in the primary state or California.
- Joint Ownership: Property held in joint tenancy or with a transfer-on-death deed can pass directly to the surviving co-owner without requiring probate.
Conclusion
Ancillary probate in California is an essential process for handling real property in the state when the decedent lived elsewhere. Although it can add complexity to the probate process, it ensures that California assets are properly handled and transferred. For those with out-of-state property, planning ahead with tools like living trusts can minimize the need for ancillary probate altogether.