”Ancillary probate” is the process involved when the deceased controls property in multiple states or dies in one state while holding property in another. If the assets are in his or her own name or held by the deceased as a tenant in common, then the assets must be probated to transfer them from the deceased’s name into the names of heirs or beneficiaries. Once determining that probate is needed, the next issue is, ”Where should probate be filed?
Real estate is always probated in the state where the property is located. Assets other than real estate may be handled by probate in the state where the person last resided. For example, if an Oregon resident dies, the main probate would be in Oregon for personal property and any Oregon real estate. If real estate was also held in California, the California real estate would be handled with “ancillary probate” in California. In reverse, the deceased’s residence being in California yields the main probate in California for California real estate and for personal property, with an Oregon ancillary probate for any real estate in Oregon the deceased held at the time of death.
Ancillary administration is defined by California Probate Code §12501 as “proceedings in this state for administration of the estate of a non domiciliary decedent.” ”Non domiciliary decedent” is defined by California Probate Code §12505 as someone who dies while “domiciled in a sister state or foreign nation.” California Probate Code §§12500-12591 provides the rules dictating how estates of non domiciliary decedents are to be treated. How property is to be distributed to a sister-state personal representative is provided in California Probate Code §§ 12540-12542, and the collection of a small estate’s personal property by a personal representative in a sister-state without ancillary administration is covered at California Probate Code §§ 12570-12573.
The most frequent ancillary scenarios are either foreign domiciliary or California domiciliary.
- Foreign domiciliary or “non domiciliary” is when someone dies when residing outside California while owning property in California. Very commonly, a non domiciliary owns a vacation home in California. For this situation, probate is a simple process. A copy of the will and a copy of the order admitting the will into probate (combined with a second copy of the will) must be certified as a true and correct copy by the deputy or public employee of the court (usually the court clerk or local equivalent) who has legal custody of the will. The attorney who probates the primary estate should obtain these certified copies. In absence of such attorney, you may write to the court clerk to acquire these documents.
- California domiciliary is when someone died as a resident in California but held property outside California. This ancillary probate must be filed in the state in which the real estate is located. Where the deceased “resided” at death is not always obvious. Sometimes a case can be made for two separate states. To decide where to file probate, we look at where the deceased actually lived, which state issued his or her driver’s license or ID, where he or she was registered to vote, where he or she received mail, and similar questions.
To determine if ancillary probate in California applies to you, for more information about probate requirements in California for out-of-state residents, or to learn the best strategies for your case, please call us at ____ or email us using this online form to schedule a free initial consultation with a probate attorney. Trying to probate an estate on your own can be a confusing process. By putting my expertise to use, you allow me to simplify and streamline the process for you. In a free introductory consultation, I will answer your questions and lay out how your situation can be assisted by professional counsel. For an initial consultation, contact T.S. Wrobel Law Group to speak with Thomas Wrobel for your probate needs. Call (415) 928-4161 now for an initial consultation, or reach us by email at info@TSWrobel.law. We look forward to assisting you.