If you own property in different states (say you live in New York but winter in Florida or live in Georgia but have family property in Ohio), your estate could be complicated for those that survive you one day. Real estate is governed by the laws of the state in which it is located, not by the laws of the state where the owner lives. Thus, when a person dies, probate must be done in the state where they live and also in the state(s) where any of their property is situated. Although doing probate in one state is usually not too big a deal, having to deal with two separate state processes can be quite a headache.
Probate in a second (or third) state is called “ancillary probate.” Probate begins in the state where the deceased lived, and then the ancillary probate process is started in the state(s) where the property is located. This process often means more bother and expense for the executor of the estate, and the executor will likely need to find an attorney in the other state to help handle the probate.
Many property owners don’t think about this complication, but it is good to know that this problem exists and that there are simple ways to avoid ancillary probate. Here are two possible ways you can avoid a complicated probate situation when you own property in different state(s):
– Owning the property as joint tenants with someone else. This option allows you and another person(s) to own the property. At the time of death, the property can transfer to the other joint owner and not have to be probated.
– Putting the property in a trust. Assets held in a trust are not part of the probate process. Those assets are distributed pursuant to the trust instructions, and this process negates the need for any probate process even for property located out-of-state.
The need for ancillary probates can be avoided as long as some proactive planning is done. If you are ready to create a plan, or if you just have a few questions, please contact an estate planning attorney or elder law attorney in your state.
Miles Patrick Hurley is a Certified Elder Law attorney in Atlanta, Georgia, serving the legal needs of the elderly population on issues related to aging, including retaining independence, quality of life and financial security. Mr. Hurley is one of only twelve attorneys in the state of Georgia to receive the Elder Law Attorney Certification (CELA), and one of less than 500 nationwide. https://hurleyeclaw.com