Ancillary Probate

What Is an Ancillary Probate?

An ancillary probate is a proceeding when a person dies with property in
more than one state or dies in one state with property in another. Our
office can help in all ancillary probate situations.

The California probate code defines ancillary administration as
“proceedings in this state for administration of the estate of a
nondomiciliary decedent.” PC 12501. A “nondomiciliary decedent” is
defined as a person who dies “domiciled in a sister state or foreign
nation.” PC 12505. Finally, California Probate Code sections 12500-12591
sets out the rules governing treatment of estates of nondomiciliary
decedents, as well as distribution of property to a sister-state
personal representative (PC 12540-12542) and collection of personal
property of a small estate by a sister-state personal representative
without ancillary administration (PC 12570-12573).

What to Look for in an Ancillary Probate

Of course first things first… where did the decedent “reside” at
death? This is not always clear. In some cases you can make a case for
two different states. Typically we look at:

  • Where did the decedent actually live;
  • Where were they registered to vote;
  • What driver’s license did they have;
  • Where did they receive their mail;
  • and many more questions like this.

The most common ancillary situations are as follows:

Types of Ancillary Probate

CALIFORNIA DOMICILIARY: This means that the person died a resident of
California but with property in another state. The most common ones I
have worked on are: 1) people owning a vacation home in Hawaii or the
Nevada side at Lake Tahoe, 2) people with rentals in Las Vegas or
Phoenix and 3) people with mineral rights in Oklahoma, Texas and North
Dakota.

FOREIGN DOMICILIARY (or “nondomiciliary”): This means that the person
died a resident of another state or another country. I have seen these
many times. Some cases I have worked on included: 1) people owning a
vacation home on the California side of Lake Tahoe as well as the
California coast, people owning rentals in Sacramento and other cities,
and 3) people who moved from Sacramento living property behind.

Ancillary Probate Process

Typically the process is started by filing for probate in the state
where the decedent is determined to have resided (California or other
state). However, there are many situations where that is not required so
do talk to a probate attorney who has dealt with these cases many times
like we have. Filing an unnecessary probate can cause substantial delays
and cost a lot of money.

In some cases, for example a person dies in another state, has no
property there but does have property in California we can file directly
in California without opening the domiciliary probate. Each case is
unique so exam carefully before filing in any state.

Once the probate is filed and letters are issued in the home state
typically the following documents are needed to open the ancillary
probate in the nondomiciliary estate. Thus the ancillary probate is
usually two months, or so, behind the domiciliary probate. The documents
typically needed are:

  • Authenticated copy of the court order appointing the executor,
    administrator or personal representative;
  • Authenticated copy of the court’s “Letters” or similar document (as
    some states may have other terminology) which expresses the above order
    and puts the person in the decedent’s shoes;
  • Authenticated copy of the decedent’s will if they died testate (with a
    will) rather than intestate (without a will).

Notice I use the words “authenticated.” In California the probate code
is very clear that the documents are to be authenticated and not merely
“conformed” or even “certified.” They are to be authenticated. Repeat
that to the attorney in the home state as they sometimes gloss over
those and just get a conformed or a certified copy.

Foreign Procedure

If documents are coming from, or going to, a foreign country then the
apostile process needs to be followed. We have done this for many
clients and can help you as well. The apostile process involves the
California secretary of state and essentially certifies, or
authenticates, a document being sent to another country. It’s like a
very fancy notary!

Beyond that, opening a probate and administering a probate is basically
like any other probate. Determining the connection to the other state is
the only other issue. In some cases the property gets transferred to the
domiciliary estate and in some it gets distributed directly to the
beneficiaries.

In sum, our firm is well prepared to help you with all of your ancillary
probate needs when you have an estate that has a connection to
California. Call us at 916-920-5983 or fill out the form below for any questions or inquiries you may have.

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