An Ancillary probate proceeding is a proceeding in which an estate representative is appointed in a state other than the decedent’s home state (usually the state in which the decedent was domiciled). The ancillary probate proceeding is a secondary proceeding, meaning that the primary probate or administration proceeding must first be brought in the decedent’s home state.
Real estate is governed by the laws of the state in which it sits. For estate purposes, this means that if a decedent owns real estate in two different states, or in a state other than the one in which they reside, they will need to probate their Last Will and Testament in their home state and conduct an additional ancillary probate in the second state in which they own real property. It may also be necessary to conduct an ancillary probate proceeding if the decedent owned certain personal property outside of their home state such as co-op apartment, car, a boat or an airplane but in most cases, ancillary probate is reserved for real estate.
Ancillary probate proceedings are commonly necessary in scenarios when a person is living as a “snowbird” - where they spend the warm spring and summer months in New York and spend the cooler fall and winter months in a warmer location such as Florida. If a “snowbird” made Florida their domicile, or primary residence, while maintaining a second home in New York, when they pass away, their Last Will and Testament would need to be probated in Florida. However, the personal representative would also need to seek appointment in New York through an ancillary probate proceeding in order to gain the authority to deal with the New York residence.
In order to file an ancillary probate proceeding in New York, NY law requires that the estate is actually being administered or the will is being probated in the state where the decedent is domiciled, and that the decedent possessed real (or personal in rare exceptions) property in New York. The personal representative is required to file a petition to be appointed ancillary representative in New York and must include the exemplified probate records from the decedent’s home state.
Ancillary probate or administration proceedings require additional court filing fees, and attorney’s fees and will draw out the length of the probate or administration process. Further, if the decedent never executed a Last Will and Testament and therefore died “intestate” the laws governing who will inherit from them vary from state to state.
The headache and expense of an ancillary probate and administration proceedings can be avoided through proper estate planning. You should consult an experienced estate planning attorney to discuss the possibility of placing your out of state real property into living trust which would govern the distribution of out of state real property without the need to involve an out of state court.
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