Evaluating property and determining who receives it is an important part of the probate process. Sometimes, if a decedent owned property in multiple states, the process of ancillary probate must be initiated to settle the estates in those states. Although seemingly confusing, ancillary probate can be easy to understand.

What Is Ancillary Probate?

During the probate process, a decedent’s assets are divided between the beneficiaries named in their will. Secondary probate, also referred to as ancillary probate, is the legal process that takes place when a non-resident passes away while holding property in the state. To manage the property a decedent had in California, an auxiliary probate lawyer is required. According to probate law, the administration of an estate must take place in the state where the decedent lived at the time of their passing.

However, the probate court from out of state cannot make any decisions on the deceased’s California-owned property, including real estate. As a result, to administer this property in California, a supplementary, or ancillary, probate will be required. Ancillary probate proceedings give a court the ability to allocate the non-California resident’s property to the deceased person’s beneficiaries. They can also compel the sale of the property so that the proceeds can be disbursed.

How Does the Ancillary Probate Process Work?

Ancillary or subsidiary probate performs many of the same functions as primary probate. The probate procedure normally entails identifying all of the decedent’s possessions and assets. It also involves estimating the value of anything they may have at the time of death. The executor of the decedent’s estate subsequently settles any outstanding bills or taxes that the decedent may have owed. Any leftover property is typically transferred to the decedent’s heirs or beneficiaries following the will, after all obligations and taxes are paid. Ancillary probate, on the other hand, will be necessary if any of the deceased’s surviving assets are located in a separate state.

When a resident of another state passes away while investing in property in California, the primary probate procedure in that state supersedes California’s supplementary probate procedure. Sections 12500 through 12591 of the California Probate Code create this auxiliary probate procedure. Probate Code Sections 12500–12591 contain particular guidelines for handling non-resident estates. Probate Code Sections 12570–12573 include the only exception to the necessity for supplementary probate to distribute property. If certain conditions are met, these sections permit the distribution of a small estate’s personal property rather than its real estate.

What Does Domiciliary Mean?

When going through the ancillary probate process, the phrase “domiciliary” is used when discussing residency. Domiciliary is used to describe residency, meaning that wherever an individual lived, that would be described as their domicile. For ancillary probate, two kinds of domiciliary will be used:

• Foreign Domiciliary: A foreign domiciliary is a person who owns property in California but lives outside of California and passes away. In California, vacation homes are quite frequently owned by non-domiciliaries. An official or public employee of the court, typically the court clerk or local branch, will have legal possession of the will. They must certify that a copy of the will, a copy of the judgment admitting the will into probate, and a second copy of the will are true and correct copies.
• California Domiciliary: A California domiciliary, on the other hand, is a California resident who died with property outside the state. The state where the real estate is situated is where this supplemental probate must be filed. It is not always clear where the deceased “resided” when they passed away. There may be situations in which two independent states should be considered. The court will consider the deceased’s actual residence, the state that issued their driver’s license or another form of identification, their place of registration to vote, their place of residence for mail delivery, and other factors when determining where to petition for probate.

Because each probate process is separate, understanding the differences between primary and ancillary probate starts with understanding how these situations differ from one another. Depending on whether the decedent was a California or foreign domiciliary, the paperwork and filings for each can differ drastically.

FAQs

Q: What is the meaning of ancillary estate?

A: Ancillary means anything supplementary to the original body when used in a legal context. For estate administration, an ancillary estate is a separate estate or holding in a different state than the one where the individual passed away. For example, if a California resident owned a house in Texas, that out-of-state holding would be part of their ancillary estate.

Q: What is the ancillary process?

A: When going through the probate process, any assets or holdings owned by the decedent are reviewed and disbursed among named beneficiaries. For those with out-of-state holdings, these assets will go through probate in their respective states, being recognized as ancillary to the original estate. Each state must go through a separate probate process for these assets. They cannot handle assets from other states.

Q: Which type of property is subject to ancillary probate?

A: All kinds of property are subject to ancillary probate, but real estate is the most common asset that goes through the ancillary probate process. For example, a California resident owned a vacation home in Washington. The probate process for that real estate holding would be handled by Washington. It would be ancillary to the California probate process.

Q: In what situations is ancillary probate necessary?

A: For those living in California or those who own property in California, the ancillary probate process is necessary for settling their estates for each piece of property. The primary estate is located in the state where the decedent was legally considered to be a resident. The location of their other assets is the ancillary estate holding.

Beginning the Ancillary Probate Process

Settling an estate through the probate process can be hard to handle alone. It can be especially difficult when factoring in ancillary estates and their respective probate processes. When going into any ancillary probate-related discussions, an experienced probate lawyer can help sort out any confusion. For those in California, Sweeney Probate Law is here to help. Contact us to schedule a meeting with our team.