Out-of-State Probate Tips

If your loved one owned property in a state other than where they lived, you’ll likely need a second, separate probate proceeding called ancillary probate in that state — but proper planning, like holding the property in a trust, can often avoid this extra step entirely.

Losing a loved one is an emotional and life-changing experience. You might be tasked with the responsibility of settling the estate while also grieving your loss. It can be a challenging time in anyone’s life. However, it becomes even more complicated when you must go through probate for out-of-state property.

Many people move to various states throughout their lifetime. Updates to the will, trust, and other documents are necessary when that happens. The changes need to reflect the laws in those particular states and the correct procedures for estate planning. Often though, people do not update their estate plan when they move.

What Is Probate?

The probate process starts when someone passes away and the court needs to review and validate their will. Once a probate judge (called a “Surrogate” in New York) determines the will is valid, it appoints an executor to manage the estate. The appointed executor will pay debts and taxes, transfer assets to beneficiaries, and manage the other aspects of closing out an estate.

Probate laws differ depending on the state where the assets are held. If the deceased person lived in one state, but also had assets in another, you may have multiple probate cases to handle. Out-of-state probate can be confusing to navigate alone. Ensuring you and your loved one’s beneficiaries receive all the assets left behind across state (or country) lines often requires legal guidance.

What is ancillary probate?

When a will for a resident of one state includes assets from another state, ancillary probate is usually required. Ancillary probate is the process used to distribute property in a second state when the main probate proceeding occurs in another.

The probate judge in one state has no legal jurisdiction over assets in another state. That’s why separate probate procedures are needed.

How to Navigate Ancillary Probate

If you have to go through out-of-state probate, you should understand how it works. First the executor must enter the will into probate in the deceased’s state of residence. Once that court validates it, the executor initiates an ancillary probate proceeding for out-of-state property.

The ancillary probate court often requires the executor to submit its own application or petition. The ancillary probate court may require documents from the main probate court such as the order or decree admitting the will to probate, the letters appointing the executor, and an “exemplified copy” of the will (a copy certified as valid by the main probate court). A certified death certificate or bond from the executor may also be necessary.

How can I avoid ancillary probate?

Ancillary probate puts an additional burden on the executor and can delay property distribution. You might avoid it by pointing out these challenges to a loved one who has discussed their estate plan with you, if they have assets in multiple states.

A trust can often avoid ancillary probate, if it’s properly drafted. The trust holds the out of state property, and the property can pass to beneficiaries when the current owner dies without the need for court involvement.

Real property is the most common asset that requires ancillary probate. Often “snowbirds” who live in New York and own condos in Florida can avoid ancillary probate by transferring the Florida condo to a trust.

For property in foreign countries, sometimes the country will recognize trusts like this too. If not, forming an LLC to hold the property might be a way to avoid a foreign probate proceeding.

Contact Us

Should you become the executor of an estate, please reach out to us. We can guide you through the procedure and advise you on how to handle each step. We are here to help you finalize your family member’s affairs so that you can complete the process in the least stressful way possible.

Call the Law & Mediation Office of Bracha Etengoff today for your consultation at (347) 640-0993. We can meet with you by video or at a location most convenient for you, whether it’s our Manhattan office, or your home or office.

Frequently Asked Questions

What happens if I don’t update my estate plan after moving to a new state?
An outdated estate plan may not comply with your new state’s laws, and if you still own property in your old state, that property could require a separate ancillary probate proceeding there when you pass away. Reviewing your plan after any move helps make sure it works cleanly in your new state and accounts for any out-of-state assets.

Can a living trust avoid ancillary probate entirely?
Often, yes — if the out-of-state property is properly transferred into the trust before death, it can pass directly to beneficiaries without going through a separate probate proceeding in that state. Whether this works depends on how the trust is drafted and whether the property was actually retitled into the trust’s name.

What documents does an ancillary probate court usually require?
Typically the order or decree admitting the will to probate from the main proceeding, the letters appointing the executor, an exemplified (certified) copy of the will, and sometimes a certified death certificate or a bond from the executor. Exact requirements vary by state.

Do I need to hire a local attorney in the state where the out-of-state property is located?
In most cases, yes — ancillary probate is a separate court proceeding governed by that state’s laws, so an attorney licensed there is usually necessary to file and handle it. Your primary probate attorney can typically help coordinate with local counsel in the other state.

Does ancillary probate apply to bank accounts, or just real estate?
Ancillary probate most commonly applies to real property, like a house or condo, since real estate is governed by the law of the state where it’s physically located. Other assets, like bank or brokerage accounts, often pass differently depending on how they’re titled or whether they have a named beneficiary.