What is an Ancillary Proceeding in Probate?

When someone dies, in most cases, you open a probate case to distribute their assets. But would you need more than one probate case? That might sound like it makes no sense—one death, one person, so only one probate case should be required. But it often happens that more than one probate case needs to be opened.

Property in Other States

This happens when someone dies in another state, but has property or assets here in Florida (or the other way around, where someone dies here in Florida, and has property in another state).

It’s called an ancillary probate proceeding. If someone lived in another state they will open a probate case in that state. But if that person also had property here in Florida, the property here in Florida, must be handled according to Florida’s probate laws, in an ancillary probate proceeding. The deceased’s home state does not have jurisdiction or authority to distribute or manage or handle property located here in Florida.

This is quite common here in Florida, where people have second homes or investment homes or businesses, even though they might primarily live in a state other than Florida.

Two Cases at One Time

When this happens, there are two probate cases, running concurrently, and coordinating with each other. The ancillary proceeding (in our example, the proceeding in Florida handling only the Florida property), and the primary proceeding, in the state where the person primarily lived.

As you can imagine, two separate probate proceedings might entail more time and expense.

Avoiding Probate

You can avoid this problem, by ensuring that out of state assets are set up in a way to avoid probate altogether.

So, for example, if there was a transfer on death deed for real estate, or if property was held in a trust, or another vehicle that bypasses the necessity of probate court, an ancillary proceeding might not be necessary. This is why people with property in multiple states must be very diligent about estate planning, to avoid two—or even more—probate proceedings from being needed.

However when it comes to real estate, it is always best to check with a title company, to see if they require an ancillary proceeding to ensure title for whomever is ultimately inheriting that real property.

The Home State

If the deceased had property in multiple states, there can only be one “primary” probate proceeding, with the others being ancillary. That often means having to determine which state was actually the deceased’s home state.

Ancillary proceedings often cannot happen until issues are resolved in the primary probate case, in another state.

So, for example, if relatives were fighting over a will, or if there was a challenge to a creditor claim, all in the primary probate case in the deceased’s home state, those issues would have to be resolved before the ancillary probate proceeding here in Florida, could distribute the Florida property.

Property located in multiple states? We can help with your ancillary probate cases. Call the West Palm Beach probate law attorneys at The Law Offices of Larry E. Bray today.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0734/0734.html