How to Account for Property in Another State
Provided by HG.org
In todayís mobile world, many people own property that is located in other states. They may own a vacation home or may keep certain personal property in another state than the state where they currently reside. This property must be carefully accounted for in a personís estate plan.
An important aspect of the law is jurisdiction. This term refers to whether a court has authority over a particular case. In cases involving property, usually the court that has jurisdiction is the one in the county where the property is located. If a person passes away residing in one state, that stateís court can make orders regarding the property in the borders of that state. However, it generally cannot make orders relating to property located in another state.
When someone passes away, the probate process is usually triggered. This is the process that deals with a personís final expenses and disposes of his or her remaining property. Probate is based on state law. This process is commenced in the state of the deceased personís residence. Generally, the court can make orders directing the disposition of personal property even if it is located in another estate.
The executor of the estate may be required to open an ancillary probate proceeding in the other jurisdiction and in each jurisdiction where real property is situated. Because different states have different rules regarding inheritance or estate tax, the estate in the other state may be subject to these taxes. Many states try to make ancillary probate proceedings simplified and may simply supplement proceedings in the home state. Additionally, ancillary probate tends to only deal with limited property, so it may be much faster and simple than the primary probate process.
In some states, if the value of the property is below a certain amount, the executor may be able to use a simplified process. This type of process may involve submitting the testatorís will to the court and then signing an affidavit to take possession of the property. However, some states do not permit the simplified process when real property is involved. A lawyer licensed in the jurisdiction may be able to explain whether this simplified process is permitted and what it entails.
To begin an ancillary probate case, the executor must file a petition with the probate court in the county where the decedentís real property is located. This petition may be similar to the one that the executor used to open the primary probate case. The petition should state the basic information about the case, including providing information about the testatorís identity, the fact that he or she died, that an existing probate case is ongoing, the case number associated with the other case or cases and the property located within the state. The testatorís will should be attached to the petition.
After the petition is filed, there are other legal requirements. The executor may need to sign letters of authorization and have them signed by the court clerk. The executor may need to appear in court to get approval to be the executor in that state as well or to attend a hearing. Other states allow written requests to simplify the ancillary process.
Alternatives to Probate
There may be alternatives to having ancillary probate that the testator may wish to consider before passing away. One option is to use a transfer on death deed. This deed is recorded in the county clerkís office where the real property is located. Upon the testatorís death, the property is transferred to the person named as the beneficiary. However, the beneficiary has no ownership interest until the testatorís death. Owning property as joint tenants can also help avoid an ancillary probate process. Transferring the property to a trust can also have the same effect.
The probate process can be a confusing one. A separate lawyer may be necessary in each jurisdiction where property is located. The lawyer for the primary probate process may make recommendations regarding which lawyer to hire in another jurisdiction. Many lawyers are barred in multiple states. If this is the case, the primary lawyer may be able to handle multiple probate proceedings. Even if a person believes that he or she can complete the probate process in his or her home state, probate law and procedure vary in different states so he or she may want to hire a lawyer for the ancillary probate case. A lawyer can explain the process involved and help ensure that the testatorís wishes are carried out.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.