What Ancillary Probate is and How to Avoid It

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What is Probate

Probate, as we know, is the legal process of distributing an individual’s property and assets after they pass away. In almost all cases, probate takes place in the state of the decedent’s primary residence. If ancillary probate takes place, the probate proceedings taking place in the decedent’s state of residence are referred to as the primary or domiciliary probate proceedings. 

What is Ancillary Probate

Ancillary probate refers to any additional, simultaneous probate proceedings that take place if a decedent passes away with property owned in another state. Ancillary probate often takes place when a decedent owns real estate in a state other than their home state. Because the court in one state does not have jurisdiction to distribute property in another state, this additional, separate probate court must be held.

Let’s look at an example. Say that Erin, who lived here in Washington state , died owning real estate in both Washington and Idaho. Because of a lack of jurisdiction for the court in Washington to distribute Erin’s assets in Idaho, a separate probate proceeding must take place in Idaho. 

Downsides of Ancillary Probate

Ancillary probate comes with some obvious and significant downsides, not least of which is the cost. Primary probate proceedings can be expensive enough with months, if not years of attorneys’ fees, accounting fees, and other associated costs. 

In many cases, these expenses are absorbed by the estate. Piling on the additional cost of ancillary probate proceedings in another state can significantly deplete resources within the estate, chipping away at inheritances left to heirs and beneficiaries.

Avoiding Ancillary Probate

Living trusts are one of the best ways to avoid probate of any sort. A trust allows you to directly transfer any and all assets under that trust to another individual upon your death. Since that property remains under the trust after death, all assets within that trust avoid the probate court, allowing your loved ones to grieve without the added emotional and financial stress of probate. By including properties in other states in a living trust, those properties become the property of the beneficiary at the time of your death as well, avoiding the need for any ancillary probate proceedings in another state.

If the property is owned in another state that acknowledges transfer on death (TOD) deeds, you may also decide to fill out one of these. TOD deeds allow the transferor, or owner of the property, to designate a beneficiary to inherit that estate upon the death of the initial owner. These deeds help estates to avoid the probate process.

These states honor TOD deeds: Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Hawaii, Illinois, Indiana, Kansas, Maine, Michigan (Lady Bird deed), Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio (TOD affidavit), Oklahoma, Oregon, South Dakota, Texas, Utah, Virgina, Washington, West Virginia, Wisconsin, and Wyoming.

Owning property jointly with rights of survivorship can also help to avoid probate. For example, if you and your spouse here in Tacoma jointly own a property in Northern California, if you die, that property would go to them. 

Estate Planning with The Narrows Law Group

Estate planning is one of the last ways you can care for your loved ones once you’ve passed away. Here at The Narrows Law Group, we provide expert and caring advice and guidance to help you craft a comprehensive estate plan. We provide insight into trust administration, asset protection, business structure and success planning, power of attorney, and more. Contact one of our Tacoma estate planning attorneys to get started today.

Related reading: What is a Transfer on Death Deed?