Ancillary Probate: What It Is, When It Happens, and How to Avoid It

Name: Strauss Attorneys PLLC
Rating: 4.9

Many people own property in more than one state. This might include a vacation home near the coast, a rental property in a former home state, or land inherited from family members. While owning out-of-state property can be beneficial during your lifetime, it can create additional legal complications for your loved ones after you pass away.

Without proper planning, your family may need to navigate multiple probate proceedings in different states. With thoughtful estate planning, however, it may be possible to minimize–or even avoid–these additional court processes.

What Is Ancillary Probate?

Probate is the court-supervised process used to transfer a person’s assets after death. During probate, the court validates the will (if one exists), appoints a personal representative or executor, and oversees the payment of debts and the distribution of assets to beneficiaries.

Some assets do not require probate, including:

Property owned jointly with rights of survivorship
Assets held in a trust
Certain accounts with designated beneficiaries

However, when someone owns real estate in more than one state, probate may need to occur in more than one jurisdiction.

The main probate proceeding, called the domiciliary probate, takes place in the state where the individual lived at the time of death. If the person also owned real estate in another state, a separate proceeding called ancillary probate is typically required in that state.

Why Ancillary Probate Is Often Required

Real estate is governed by the laws of the state where the property is located. Because of this, courts in that state must oversee the transfer of ownership, even if the primary probate process is happening elsewhere.

In an ancillary probate proceeding, the executor generally files authenticated copies of the primary probate documents–such as the will and the court order appointing the executor–with the court in the state where the property is located. The executor can then manage, sell, or transfer the property according to that state’s legal procedures.

While courts in different states typically recognize the will validated in the primary probate proceeding, the additional process can still create extra administrative work.

The Drawbacks of Ancillary Probate

Most people try to avoid ancillary probate because it can significantly increase the time, cost, and complexity of settling an estate.

Potential challenges include:

Additional court filings in another state
Separate attorney and court fees
Delays in transferring property to beneficiaries
Public court records and proceedings
Increased administrative responsibilities for the executor

In short, ancillary probate often means a second probate process layered on top of the primary one.

Strategies to Avoid Ancillary Probate

Fortunately, there are several planning strategies that may help your loved ones avoid ancillary probate for out-of-state property.

Joint Ownership with Rights of Survivorship

One option is to own property jointly with another person using rights of survivorship. When one owner dies, the surviving owner automatically becomes the sole owner of the property.

Because the transfer occurs by operation of law, probate is generally avoided.

However, this strategy has potential downsides. The property passes directly to the surviving owner without restrictions and may become vulnerable to that person’s creditors, divorcing spouse, or financial difficulties.

Transfer-on-Death Deeds

Some states allow property owners to record a transfer-on-death (TOD) deed, also known as a beneficiary deed.

This document allows you to name a beneficiary who will receive the property upon your death. During your lifetime, you retain full control over the property and can sell, refinance, or revoke the deed at any time.

After your death, ownership transfers to the named beneficiary without going through probate.

However, TOD deeds typically do not provide asset protection for beneficiaries, and the property may become subject to their creditors once they inherit it.

Revocable Living Trusts

One of the most comprehensive ways to avoid ancillary probate is to transfer property into a revocable living trust.

When real estate—especially out-of-state property—is properly titled in the name of a trust, it does not generally require probate administration after your death. Instead, the successor trustee manages and distributes the property according to the terms of the trust.

If you serve as trustee during your lifetime, you retain full control over the property. You can also amend or revoke the trust at any time while you have capacity.

A revocable living trust can also provide additional benefits, including:

Avoiding probate in multiple states
Providing continuity of management if incapacity occurs
Maintaining greater privacy than probate proceedings

Make Property Transfers Easier for Your Loved Ones

Losing a loved one is already difficult. The last thing families need during that time is a complicated legal process involving multiple courts and jurisdictions.

When real estate is located in more than one state, estate administration can become especially burdensome if the property is not structured properly in advance.

A well-designed estate plan can help minimize court involvement, reduce delays, and ensure that your property transfers smoothly to the people you choose.

Back to Blog