Quick answer: Ancillary probate is a secondary probate proceeding in a state other than the one where the person lived, used to transfer property located there. The main probate takes place in the home state. Many states that follow the Uniform Probate Code let the home-state executor file authenticated copies of their appointment with a local court and act as a local representative instead, as long as no local proceeding is pending. Holding out-of-state property through a living trust, a transfer-on-death deed or joint ownership can avoid the second probate.
On this page:
- What ancillary probate is
- When you need it
- The shortcut many states offer
- Cost and time
- How to avoid a second probate
- Check your situation
What ancillary probate is
Cornell's legal encyclopedia defines it as a secondary proceeding in another state than the original probate, used where the deceased left property in more than one state. The reason given is that each state has its own property laws, so a proceeding can be needed in each state where assets are located. The main proceeding takes place where the person lived at death. The Uniform Probate Code calls the representative appointed there a domiciliary foreign personal representative when they act in another state. For the main process, see how probate works.
When you need it
The trigger is property that would go through probate and is located in a state other than the home state. Real estate is the classic example, because each state applies its own property laws to land within its borders. Property that already passes outside probate, such as an account with a named beneficiary or a home held with a right of survivorship, does not enter the probate estate at all, so it does not need either proceeding. Our guide on which assets go through probate explains which is which.
The shortcut many states offer
A full second probate is not always required. The Uniform Probate Code has a chapter on foreign personal representatives, and versions of it are law in Idaho, Hawaii, Utah and other states. Under it:
- If no local administration or application for one is pending, the home-state representative can file authenticated copies of the appointment (and of any bond) with a court in the county where the property is located.
- Once filed, the representative can exercise all the powers of a local representative over the assets in that state, subject to conditions applied to nonresident parties generally.
- Filing also submits the representative to the state's courts for that role, as Idaho's statute provides.
- If someone later petitions for local administration, that ends the foreign representative's power, although Utah lets the court allow limited powers to preserve the estate.
States add their own conditions. Maine's version also asks for a certificate, dated within 60 days, proving current authority. A county form in Arizona describes the route as a way to obtain possession of personal property or transfer Arizona real property of a nonresident decedent without commencing an ancillary probate, and notes that a bond may be required unless the will waives it. Not every state offers this route, so ask the court in the county where the property sits before assuming either way.
Cost and time
Every additional proceeding brings its own court filing fees, which each court sets for itself, and its own steps and waiting periods. The shortcut above still involves a filing with the local court and, in some states, a bond. See how much probate costs and how long probate takes for what one proceeding involves, and remember that the second one has its own version of each. If the out-of-state property has to be sold, the Probate Real Estate Sale Calculator covers approval, costs and taxes.
Where the estate is small, the rules for counting out-of-state property differ. California's court help leaves real property outside California out of its small estate value, while Arizona's personal property affidavit values personal property wherever located. See how the small estate affidavit works.
How to avoid a second probate
The cleanest way is to make sure out-of-state property does not pass through the probate estate:
- A living trust. The Air Force Academy's legal office says living trusts offer extra benefits particularly when the owner has real estate in different states. The property has to be retitled into the trust. See probate versus a living trust.
- A transfer-on-death deed, where the state where the property sits allows one. The American Bar Association counts 32 jurisdictions that do.
- Joint ownership with a right of survivorship, which has its own trade-offs in control and taxes.
Our guide on how to avoid probate compares these and the other tools side by side.
Check your situation
List every state where the person owned property and how each asset is titled. The Estate Value Calculator shows what counts toward the probate estate in each state you run it for, and the Probate Cost Calculator shows what a proceeding costs there. Every tool is linked from the probate calculators page, and the methodology page shows how we check each rule. Because the rules differ by state, an attorney licensed where the property sits is worth consulting for anything valuable.