It is common knowledge that probate can be a lengthy and costly process, taking months to years to complete, in some cases. So, the thought of having to go through that process in more than one court might be too much. However, if you have property located in a state other than where you live at the time of your death, your estate may be required to go through ancillary probate. Ancillary proceedings in Sacramento Probate Court can be avoided, if you know how.
What is meant by ancillary probate?
The term “ancillary” means a legal proceeding that is not the primary or main proceeding, but instead a supplemental proceeding that is required to complete the primary probate proceeding in the court where the decedent resides. In other words, if you lived in Sacramento at the time of your death, then the primary probate proceeding would take place in Sacramento. The ancillary proceeding in a state where you have vacation property, like Colorado for instance, would aid the probate court in Sacramento in completing probate of the entire estate, including the property in Colorado.
When is ancillary probate required?
Generally, the rules require that real estate is probated in whichever state the real estate is located. So, if you are a resident of Sacramento, the real estate where your residence is located will be probated along with your other assets in Sacramento. However, if you have a summer home in Colorado, then there would need to be an ancillary probate proceeding in Colorado for that particular property. The reason is that only the Colorado probate court would have jurisdiction over the Colorado property.
The Ancillary Process in Sacramento Probate Court
Most executors who are required to deal with ancillary probate proceedings retain a probate attorney where the out-of-state property is located. Probate is always initially commenced in the deceased’s state of residence. The ancillary probate proceeding is then opened in any additional states, as necessary. Once the will has been accepted by the probate court in the primary proceeding, it is typically accepted by the other court as a “foreign will.”
How to avoid ancillary proceedings in Sacramento probate court
If you want to spare your family the stress and cost of an ancillary probate court proceeding after your death, you should definitely consider including certain estate planning tools that can help you avoid ancillary probate. The most common strategies include owning property with someone else in joint tenancy, tenancy by the entirety, or community property with right of survivorship; transferring the property to a revocable living trust; and recording a transfer-on-death deed for the property.
Using a Revocable Living Trust to avoid ancillary probate
Living trusts are quite useful estate planning tools which are comparable to a will. Trusts have the added advantage of keeping property from becoming part of your probate estate. When you transfer real estate to a trust the trustee becomes the actual owner of the property. Since the property is no longer a part of your estate, there is no requirement for probate.
Transfer-on-death deed can avoid ancillary probate
Some states allow another method for avoiding ancillary probate — recording a transfer-on-death deed for the property. The deed will identify the beneficiary you choose to receive the property after your death. At that point, the property is transferred directly to the beneficiary you named without going through probate. While this may seem to be a simple fix, it is not without consequences or potential problems. Be sure to consult with an experienced and qualified estate planning attorney before electing to use this option.
Joint ownership of property avoids probate
Joint ownership is another way of avoiding ancillary probate. When property is owned jointly and one of the owner’s dies, the surviving owner maintains his or her ownership of the property automatically. In that situation, there is no need to go through the probate process in order to transfer the property to the intended beneficiaries. Like using transfer on death deeds, this, too, may seem to be a simple fix; However, it also is not without consequences or potential problems. Be sure to consult with an experienced and qualified estate planning attorney before electing to use this option.
Don’t forget to include out-of-state property in your trust
It is quite common for people to transfer their primary residence to their trust, but neglect to include their timeshare or a vacation home in the trust. Indeed, this is one of the most common estate planning mistakes. If all of your property, including out of state property, is not included in the trust, you may be exposing your estate to probate.
If you have questions regarding ancillary probate proceedings, or any other estate planning needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.
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