How To Avoid Ancillary Probate

Jun 18, 2010

Probate is a legal process that distributes the estate to the rightful heirs after a person’s death. The primary probate process covers property in the home state of the deceased while an ancillary probate process covers property in other states.

And, because each state has their own set of laws, the ancillary probate process may distribute property much differently than you expected. Needless to say, dealing with two probate proceedings can be time-consuming and cumbersome. A good estate planning attorney can advise you best on how to avoid ancillary probate, but here is a simple guide to help you with the basics.

  • Since the probate process covers real property, you can re-title the out-of-state property in the name of a Revocable Living Trust. The property held by the Trust is transferred directly to the beneficiaries named in the Trust upon your death.
  • People who are married can title the property in joint names with their spouse. The spouse would take control of the property through rights of survivorship and avoid the probate process. Keep in mind however, that this is a temporary fix – ancillary probate will still be required when the other spouse dies or in the unfortunate event that the both spouses die at the same time. This is not the best option if the spouses wish to leave their property to different individuals (like their separate children), or worry about a new spouse ultimately getting the property.
  • If you are not married or wish to give the property to someone other than your spouse after death, you can still title the property jointly and give survivorship rights to the other person. Your attorney will advise you of the tax and other consequences of transferring property during your lifetime.

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