Donna owned property in New York and Florida. She did not do any estate planning during her lifetime. When she retired, she moved down to Florida and lived in Florida full time until her death. After her death, her children begin to wonder how they are going to take ownership of Donna’s New York property.
Why is Ancillary Probate Necessary?
When a person dies owning property located outside of their domiciliary state, the decedent’s heirs must bring an ancillary probate or administration proceeding. (Think of Ancillary probate proceeding as another, or possibly additional, probate proceeding.) This is because a Court that has issued Letters Testamentary or Letters of Administration in one state does not have authority to issue Letters Testamentary or Letters of Administration that are valid in another state. Indeed, the Letters Testamentary that you receive in New York are only valid for property that is situated in New York.
As such, the heirs must obtain legal authority from the state where the property is located to act on that property. If a Decedent owned property in New York, Florida, and Virginia, then the Executor must obtain legal authority to act in all three states. Essentially, the executor or heirs must first file for probate in the state of the decedent’s domicile. Then, the heirs must bring a second probate / administration proceeding in the state which holds decedent’s additional property. Having to bring another probate proceeding can add unnecessary cost and delay to the estate.
Who may Petition for Ancillary Probate?
- The person expressly appointed in the will as executor with respect to property located within the particular state.
- The person to whom domiciliary letters have been issued or if domiciliary letters are not issued, the person appointed in the will to administer all property wherever located.
- The person acting in the domiciliary jurisdiction to administer and distribute the testator’s estate.
- A person entitled under the SCPA to letters of administration c.t.a. A person entitled to letters of administration c.t.a. is anyone set forth in SCPA 1418(1).
How to Avoid Ancillary Probate?
- Place beneficiary designations on your assets
- Add a co or joint account or deed holder
- Do an inter vivos or lifetime transfer (or lifetime transfer while keeping a life estate)
- Transfer the property into a probate avoidance vehicle such as:
- Trust (revocable or irrevocable)
- Family Limited Partnership
Additional resources provided by the author
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