An “ancillary probate” is a proceeding when a person dies with property in more than one state or dies in one state with property in another. If a person dies owning assets in his or her sole name or as a tenant in common, then chances are the assets will need to be probated in order to get them out of the decedent’s name and into the names of his or her heirs or beneficiaries. But once it has been determined that probate will be necessary, how do you determine where to file for probate?
Regardless where a decedent resided at time of death real estate must always be probated in the state in which it is located. Non-real estate assets may be probated in the state the person died a resident. If, for example, an Arizona resident dies, there would be a main probate in Arizona for the personal property and Arizona real estate. If that person also owned real estate in California there would be an “ancillary probate” in California for the California real estate. The reverse is also true. If, a California resident dies there would be a main probate in California for personal property and California real estate and an ancillary probate in Arizona for any Arizona real estate owned by the decedent at the time of death.
California Probate Code §12501 defines ancillary administration as “proceedings in this state for administration of the estate of a non domiciliary decedent.”. California Probate Code §12505 defines a “nondomiciliary decedent” as a person who dies “domiciled in a sister state or foreign nation.”. Finally, California Probate Code §§12500-12591 sets out the rules governing treatment of estates of non domiciliary decedents, as well as distribution of property to a sister-state personal representative (California Probate Code §§ 12540-12542) and collection of personal property of a small estate by a sister-state personal representative without ancillary administration (California Probate Code §§ 12570-12573).
The most common ancillary situations are as follows:
Foreign Domiciliary (or “non domiciliary”): This means that the person died a resident of another state or another country with property in California. Typically, a non domiciliary owns a vacation home in Southern California. In that case the procedure is simple – a copy of the Will and a copy of the order admitting the Will to probate (with another copy of the Will attached) must be certified as a true and correct copy by the public employee (or deputy) who has the Will or order in his or her legal custody. This person is usually the court clerk or a local equivalent. The attorney probating the primary estate should be asked to obtain these authenticated copies. If there is no such attorney, one may write to the court clerk to obtain those documents.
California Domiciliary: This means that the person died a resident of California but with property in another state. The ancillary probate is filed in the state where the property is located.
Where did the decedent “reside” at death? This is not always clear. In some cases you can make a case for two different states. Typically we look at: Where did the decedent actually live; Where were they registered to vote; What driver’s license did they have; Where did they receive their mail; and many more questions like this.
To learn whether a California ancillary probate is applicable to you, or to gain more information on California probate requirements for out of state residents, or to discover which strategies are best for your situation, or if you need the assistance of a probate lawyer, please contact me for a free consultation. If you are trying to probate an estate the process can be confusing. That is where I can be of help. I make a difficult and bewildering probate as simple as possible. If you wish to gain more information on California probate or if you need the general assistance of a probate lawyer, please contact me for a free consultation. I will spend time with you to answer your questions.
I assist clients in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, Riverside and San Diego County. You can reach me by phone at 760-989-4820, by email at [email protected] or through my online contact form.
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