Tips for Avoiding Ancillary Probate in Your Estate Bequeaths
In the United States, about 7.15 million single-family houses are second or vacation homes. This accounts for just over 5% of the American housing stock, and these houses often complicate the distribution of assets when they are located in a different state from where the decedent resided. Working with an estate planning lawyer may help you avoid the ancillary probate process related to out-of-state assets.
What Is Ancillary Probate?
Ancillary probate is a second probate process after a person dies. Only estates in which a person was the sole owner of tangible property located in another state require an ancillary probate process. This tangible personal property could include a second home, building, boat, vehicle, or any other property registered in that state.
When Does New Jersey Require an Ancillary Probate Process?
New Jersey requires ancillary probate if you own tangible property that is located in another state at the time of your death. If there was a joint owner, such as your spouse, adult child, or business partner, no ancillary probate is required. The primary probate process, which is also called your domiciliary probate, will occur in the county of your primary residence at the time of your death. Once the court processes your domiciliary probate, the process pauses until the ancillary probate is completed. Probate in New Jersey can’t close until ancillary probate concludes.
How Does Ancillary Probate Work?
Ancillary probate begins with action taken by the executor of your will. After obtaining your death certificate and opening probate in your home state, the ancillary probate can begin. The executor must file paperwork to start the probate process in the county court where your tangible property is located. If you have property in multiple states, an ancillary probate process must occur in each of those states. Because each state has different laws around probate, you may need to have an estate planning lawyer who is familiar with each of those state’s laws.
After the court handling your primary probate case proves the legitimacy of your will, it permits your executor to open the ancillary probate. Your executor will need documentation that your state of residence has accepted your will and their legitimacy as its executor. Once all the probate processes have started, the executor can pay any debts the estate owes. They can also pay your taxes and any estate-related expenses. The executor must also notify recipients to whom you have bequeathed the out-of-state assets. Once the court approves, the executor can distribute the assets involved in the ancillary probate process.
Who Is Involved in the Ancillary Probate Process?
All ancillary probate cases will include your executor. They will also include the probate court. The executor could choose to hire another attorney to represent your estate’s ancillary probate process, but this is not required. Your New Jersey estate planning attorney can handle it on behalf of your estate.
What Strategies Can I Use to Avoid Ancillary Probate?
To avoid ancillary probate, make sure that all of your out-of-state assets are held in joint ownership. You might need to get a new title unless that state’s law identifies the asset as community property within a marriage. Before your death, you could move the title to the property to a revocable living trust. Some states permit a beneficiary deed or transfer-on-death deed for property. This also allows you to avoid ancillary probate.
If you want to avoid the ancillary probate process in your estate, working with a New Jersey estate planning lawyer may be a helpful solution. To learn more about ancillary probate and how to avoid it, contact The Knee Law Firm in Hackensack at (201) 996-1200. Our brief online form also allows you to submit your contact information in order to have an associate from our office reach out to you and schedule an appointment.