PROBATING NON-CALIFORNIA PROPERTY AND ASSETS – ANCILLARY PROBATE

When a decedent who is a resident of California, but has real property elsewhere, dies, two separate probates will need to be conducted: the primary probate, in California, and what’s called an “ancillary” probate in the state of wherever the other property is situated.

Why does there have to be an ancillary probate?  Real property is governed by the laws of the state where it’s located, regardless of where the owner lives. Unfortunately, this means additional work for the personal representative (the person charged with overseeing the probate process) of the decedent's estate.  The personal representative will generally need to hire an attorney in the other state to handle the probate.  Generally, however, once a will is validated by the probate court in the decedent's home state, it will be accepted in the second state without further proof.

The reverse is true for non-California residents who have real property here; an ancillary probate must occur in the California probate court.  A representative appointed by another state has priority to be appointed as the local personal representative in California. However, a personal representative from a foreign country does not have any special priority. The will, or an authenticated copy, can be admitted to the probate court here, along with a copy of the order admitting the will in the primary probate.  A representative appointed by another state may also use California’s small estate affidavit procedure.

To avoid ancillary probate, talk to an estate planning or probate attorney in the jurisdiction of your non-resident property.  Owning the property in trust, or with another person in a certain manner, or recording a transfer-on-death deed for the property may avoid an ancillary probate.