The Guide to Ancillary Probate Administration

Executive Summary

• An ancillary probate is a necessary process for distributing assets owned in a different state than the one where a deceased individual resided.
• To complete the ancillary probate process, a representative must gather the necessary documentation, petition the court, and administer the property to the appropriate heirs. 
• Ancillary probate must be filed in the county where the deceased’s out-of-state property is located. 
• Once granted permission by the probate court through letters of administration, a personal representative can administer property according to a will or state intestacy laws.

Introduction

Under California law, when someone who owns assets in California passes away while residing in another state or country, the California property cannot be distributed through an out-of-state probate proceeding. Instead, a process called an ancillary probate administration is required to pass ownership of the California assets to the deceased’s heirs or beneficiaries. 

Similar to the standard probate process, ancillary administration requires filing a petition with the county court where the assets are located and appointing a personal representative to distribute them. As an out-of-state probate proceeding, ancillary probate offers unique challenges. The support of an experienced ancillary probate attorney can be very valuable for guiding representatives or relatives of a deceased loved one through a smooth process.

What is ancillary probate and when is it required?

Ancillary probate is an additional probate proceeding that needs to be filed when a person dies owning assets in a state or country that is not their state or country of residence.

The primary or domiciliary probate administration will occur in the state or country where the deceased resided, but ancillary probate will need to be initiated to dispose of the property owned in another state or country. In other words, an ancillary probate petition must be filed in the county court where the property is located. 

For example, if an individual lived in and passed away in New York, but they owned a vacation home in California, then ancillary probate will be necessary for determining how to distribute this property upon their death. The surviving family or estate administrator will have to file with the court in California.

According to Probate Code 13100, ancillary probate is required in California when the estate property exceeds a value of $184,500. However, there are exceptions to this process if there is a trust or joint owner that shares ownership of the property upon the estate owner’s death.

Once the ancillary probate process is complete in California, the assets can either be distributed to the deceased’s beneficiaries or transferred to the personal representative in the home state for further administration.

The following hypothetical case scenario demonstrates how this may play out in a real world situation. However, keep in mind that every situation is different, and it is always crucial to seek the support of an attorney for specific guidance related to your case.

Mark owned a vacation home in California despite living in Texas at the time of his death. Because his vacation home was appraised by the executor of his will in his home state at a value of just over $300,000, the property was considered above the $184,500 threshold for probate in California, meaning that it had to follow through probate. 

Mark did leave a will defining how he wanted the majority of his assets in Texas to be distributed, requesting that they be split amongst his three children equally, but he excluded the vacation home property in California. 

How To File for Ancillary Probate

Filing for ancillary probate is very similar to the process of navigating the full probate process in the deceased individual’s home state, but it is still its own unique process with different steps. The following steps will allow you to prepare for and file ancillary probate. 

1. Prepare for Ancillary Probate

The first step in preparing for ancillary probate is to understand the state-specific requirements in the state and county where the individual owned property and ancillary probate will need to be filed.

Once you understand the scope of the requirements needed, you should compile a comprehensive list of assets belonging to the estate that are located in another state different from where the decedent resided. 

In our case scenario from above, Mark appointed his brother James as the executor of his will. As the personal representative of the estate, James handled the probate process for the majority of Mark’s assets in Texas. Because of Mark’s property in California, James also began to prepare for the ancillary probate process in California. 

He reached out to an appraiser in California to secure an accurate valuation of the vacation home. Then, he studied local laws to ensure that he met the requirements to apply as a personal representative of the estate in California so he could prepare his petition.

2. Gather Necessary Documentation 

When filing a petition with the probate court, you will need to have supporting documentation for the petition as required by the state. It’s important to gather the necessary documentation in advance of filing the petition with the court so that you can submit the petition and documents altogether and avoid hiccups in the process.

Important documents include: 

• The deceased’s death certificate
• A valid will if left by the decedent
• Proof of the decedent’s residency at the time of their death, like a driver’s license, utility bill, or voter registration 
• Deeds to property owned by the decedent in the jurisdiction.

What is a notice of ancillary administration?

A Notice of Ancillary Administration is a notice that a personal representative must file when an ancillary administration has been commenced in another state, as required by most state probate codes

The rule requires the personal representative to file a notice when an ancillary administration has commenced that contains:

• The name and address of the ancillary personal representative;
• The style of the ancillary probate court and the case number;
• The county and state where the proceeding is pending; and
• The date of commencement of the proceeding.

3. Prepare Your Petition

Ancillary probate requires filing a petition with the probate court to initiate the proceedings. A Petition for Ancillary Probate is the legal document that commences ancillary probate proceedings, as outlined in California Probate Codes. It requests that ancillary letters of administration be issued to an ancillary personal representative to provide them with the legal authority needed to administer a deceased person’s California assets.

A petition should include information like the deceased’s date of death and a list of assets they possessed within the state where they are petitioning. It’s recommended to have an attorney review your petition to ensure that it meets all legal requirements and has all necessary supporting documentation attached.

4. File the Petition with the Court

After reviewing the petition with your attorney, you can formally file the petition with the local probate court to request letters of administration. The petition must include specific information and documentation supporting the request for ancillary letters of administration to be issued.

Ancillary letters of administration grant the same rights, powers, and authority given to other personal representatives in California to do the following:

• Manage and settle estates;
• Sell, lease, or mortgage local property; and 
• Raise funds for the payment of debts, claims, and gifts in the domiciliary jurisdiction.

5. Follow court proceedings

After you submit the petition to the court, the court will review the petition and supporting documents. During court proceedings, the court will request any necessary additional information to ensure the petition meets all standards. If the petition meets all necessary standards and legal requirements, the court will approve the petition to open ancillary probate and appoint a personal representative. 

6. Appointment of ancillary personal representative

An ancillary personal representative is a person who is granted ancillary letters of administration and is responsible for disposing of or transferring the California property during an ancillary probate administration.

California Probate Codes list the following order of preference for who should be appointed as the ancillary personal representative when there is a will: 

• The personal representative specifically designated in the will to administer the California estate has priority. 
• If none is designated, the personal representative in the state of residence, if qualified to act in California, should be appointed by the court. 

If the personal representative in the state of residence is not qualified to act in the state where the property is located, an alternate or successor personal representative who is named in the will who is qualified to act in California should be appointed. 

If there is no alternate or successor personal representative named in the will, or if the person named is not qualified to act in California, those entitled to a majority interest of the California estate may select a personal representative who is qualified to act in California.

However, when the estate is intestate (when there is no will) and the home-state personal representative is not qualified to act in California, the order of preference for the appointment of a personal representative under California’s intestacy statute will apply.

Mark’s vacation property in our case scenario is located in Los Angeles County. Therefore, James filed his petition for ancillary probate with the Los Angeles County court. Because James met the requirements for California representatives—over the age of 18 and of sound mind—the court approved his petition and provided him with letters of administration to manage and distribute the property.

7. Administration of ancillary probate

The final step in the ancillary probate process is the administration of the property owned by the decedent. As is the case with primary probate, the representative in the ancillary probate process will be responsible for distributing property to heirs according to the wishes of the deceased or in alignment with state law.

If the decedent left behind a will, then the representative will be able to distribute the property according to the terms specified by the decedent. However, if there was no will to outline the decedent’s wishes, they would distribute the property according to state intestacy laws specifying inheritance priority. 

Because Mark did not include his vacation property in his will, it was unclear who to leave the property to. Mark did have three children, who he named in his will as beneficiaries. 

James, as the executor, decided the best way to preserve Mark’s wishes and distribute the property was to sell the property and distribute the proceeds among Mark’s three children. After obtaining permission from Mark’s children, James sold the property and provided each with a third of the amount gained from the sale. 

Costs and Timelines associated with Ancillary Probate

Costs and timelines associated with ancillary probate depend on the size of the estate and the value of assets left behind by the decedent. Ancillary probate is typically cheaper and less time-consuming than standard probate because there are often fewer assets to distribute.

If a decedent did not own extensive assets in the state where they passed, ancillary probate is typically much quicker. Still, of course, every circumstance is different, and costs can vary widely on a case-by-case basis. 

Some of the costs involved in ancillary probate include:

• Appraisal expenses – An estate often benefits from the support of a professional appraiser who can accurately value any property but will charge a fee from the estate. 
• Court filing fees – The court often charges fees for filing a petition, processing your case, and holding hearings, which can vary depending on your county. 
• Attorney fees – The retainer fee for an attorney will be necessary for receiving legal guidance about your case. 
• Bond – The local court where the ancillary probate is being administered may require a new bond be obtained to be appointed as the personal representative of the ancillary probate.

Managing Out-of-State Probate

Ancillary probate offers unique challenges for personal representatives and individuals responsible for managing a deceased loved one’s estate. Because the process must take place across state lines, ancillary probate often requires additional support for the personal representative. 

Challenges associated with multi-state estate administration include:

• Understanding differing probate laws and tax implications across states 
• Maintaining communication with interested parties across different time zones and locations
• Attending court hearings or filing documents with the court where assets are located

Seeking an attorney is a valuable step in alleviating these challenges, especially if the attorney resides in the county where the ancillary probate takes place. This will give the personal representative a firm understanding of the local laws, the ability to attend any hearings, and the convenience of working within their local courts.

At RMO, we operate across the country, with firms in multiple states. We are well-versed in the laws of the states where we operate. However, we’ll not only support you in the state where you reside, but we can connect you with resources where you need them. We can connect our clients with law firms in other states to help them navigate the legal system in those locations.

When should I contact a probate lawyer?

If you are the nominated personal representative, heir, or beneficiary of someone who passed away leaving property in multiple states, you should contact a probate lawyer as soon as possible to discuss the situation. A knowledgeable attorney can help guide you through the ancillary probate administration process and ensure that all of your loved one’s assets are appropriately and efficiently distributed.

Simplify Your Multistate Estate Administration with RMO

The ancillary probate process appoints a personal representative to distribute property left by a deceased individual. Administering an estate across multiple states offers unique challenges, like navigating different state and county laws, but the guidance of an attorney can go a long way toward encouraging a smooth process.

At RMO, our estate and probate administration attorneys have decades of experience in supporting clients through probate and ancillary probate. We’ll work to understand the unique circumstances around your situation and get you connected with the resources you need.

Schedule a consultation with our probate and estate administration attorneys to get started.