Ancillary Probate
The probate laws of a given state apply to assets that are physically located within the borders of that state. So if a person owns real estate in both Mississippi and Florida at the time of his death, the probate laws of Mississippi will govern his Mississippi real estate and the probate laws of Florida will govern his Florida real estate. This is so regardless of where the person lives at the time of his death.
An ancillary probate is a proceeding that must take place in another state in addition to the proceeding that is brought in your home state. If, for example, you own property in Alabama and Mississippi and live in Mississippi at the time of your death, your executor would open up one proceeding in Mississippi to deal with your Mississippi assets. This proceeding is sometimes referred to as the primary proceeding. But because Mississippi law does not govern Alabama assets, your executor would also need to bring a separate proceeding in Alabama to deal with the Alabama assets (see our Section on Ancillary Probate in Alabama). The second proceeding is called an ancillary probate or ancillary administration.
The need for ancillary probate can greatly increase the total estate administration costs. Ancillary probates can require the court fees, accounting fees, attorney’s fees, and related costs to be paid for each state that is involved. This is especially true in states like Mississippi that do not have a shortened or special proceeding for ancillary probate. Because Mississippi does not recognize ancillary probate as such, an “ancillary” probate in Mississippi is almost identical to a standard probate in Mississippi. So if we reverse the above example and have the decedent living in Florida at the time of his death, the executor would bring a primary probate in Florida and another primary probate in Mississippi – that’s two full-blown probate proceedings!
Ancillary probate can also result in unintended inheritance issues for intestate estates (estates that are not disposed of through a valid Last Will and Testament). Because the intestacy laws of each state differ from those of other states, the person’s heirs at law in one state may not be his or her heirs at law in another state. For example, a person’s Alabama property could be distributed to a different set of beneficiaries than the same person’s Mississippi property.
Our probate attorney assists clients from across the United States with ancillary probate proceedings. Contact our probate attorney today for to discuss your specific situation.
A Note on Dealing with Ancillary Probate of Community Property
Ancillary probate can be even more tricky when dealing with both community property and non-community property states. For example, if a married couple moves to Mississippi or Alabama after having resided in Louisiana for a number of years, chances are that some portion of that client’s assets could be considered community property. But Alabama and Mississippi are common law jurisdictions that do not have community property laws.
As with most probate-related issues, it is best to deal with community property in advance, before probate is necessary. There are planning techniques that can help resolve the pitfalls and ambiguities resulting from ancillary probate proceedings involving community property. The possibility of ancillary probate is one factor that leads some people to use a trust-based estate plan that is designed to avoid probate.
If you own property in more than one state and want to talk about how to avoid probate in your own estate, contact our attorney today for a free telephonic consultation.