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Kevin O'Flaherty

In this article, we answer the question "what is ancillary probate?" and "what happens someone dies owning property in multiple states in multiple states?"  We address the following:

  • When is ancillary probate required?
  • What is the process if probate is required in multiple states?
  • How do I simplify or reduce costs for ancillary probate?
  • How can I prevent my estate from going through ancillary probate?

What is Ancillary Probate?

Probate is a court case that is sometimes necessary in order for an estate's executor or administrator to collect the property of a deceased individual ("the decedent") and distribute that property to the decedent's heirs and beneficiaries. A probate case is typically opened in the state in which the decedent primarily resided. However, if the decedent owned property in states other than his or her primary residence, the executor or administrator may need to open secondary probate cases in those states in order to gain control of the property in those states.  These cases are known as "ancillary probate" cases.

When is Ancillary Probate Required?

Ancillary probate is required whenever the decedent owned property in a state other than his or her primary residence that, according to that state's probate laws, must go through a probate case in order to be collected and distributed to the decedent's estate beneficiaries. In practice, this usually means real estate owned outside of a trust.

What is the Process if Probate is Required in Multiple States?

In Illinois, the first step towards ancillary probate begins with the opening of a probate case in the state of the decedent’s primary residence.  Once a probate case has been established in the state of the primary residence, a probate case needs to be opened in the secondary state.  After the will (if there is one) has been accepted by the court in the decedent’s home state, the second state will typically accept the will without further proof.  Then, the will in the second state is referred to as a “foreign will,” and the executor must either be the executor for both states, or hire a representative in the second state to simplify the process.  

Once given approval, the individual (referred to as “foreign executor”) can file the necessary letters in the second state, saving the other executor the trouble of requesting legal documents from another state.  The executor named in the primary state cannot take control of the assets in the second state until the second state’s court has received and approved the will, letters and appropriate documentation required to proceed through probate.

How Do I Simplify or Reduce Costs for Ancillary Probate in Illinois?

The biggest downside of ancillary probate is the cost of going through probate two or more times.  Each state has its own own court fees, attorney’s fees and accounting fees, typically multiplying the cost of probate by two or three times.  The best way to reduce costs after you already know you will need to go through probate in both states, is by appointing a “foreign executor” to handle the legalities in the second state.  Ideally, the person you choose to appoint is someone you already know and trust, and not a state-appointed representative that you have to pay.

How Can I Prevent My Estate from Going Through Ancillary Probate?

There are several easy ways to prevent your loved ones from dealing with the expenses and headaches of ancillary probate.  The following methods are common ways to prevent ancillary probate:

  • Instead of owning a property solely in your name, title properties that will likely be subject to probate in joint tenancy, tenancy by the entirety, or community property with right of survivorship;
  • Put the property into a revocable living trust; or
  • Issue a “transfer-on-death” (TOD) deed, which is sometimes referred to as a beneficiary deed

The common theme here is to plan ahead.  You can prevent ancillary probate by making sure you are not the sole owner of out-of-state properties at the time of your death.  Typically, the process of changing the way your deeds are titled is inexpensive.  For example, a transfer-on-death deed looks exactly like other deeds of the same property, except it doesn’t take effect until your death. 

When it comes to the titles of probate items, such as a home, some people are hesitant to share ownership of such a valuable asset.  Be sure to choose a method you are comfortable with, and make sure your beneficiaries remain up-to-date.  Revocable living trusts are another option, and can be used in combination of a will to ensure your estate is allocated appropriately in accordance with your wishes.

To learn more about trusts and wills for your estate planning, check out some of our articles, including What is a Trust?and Wills vs. Trusts in Illinois. You may also be interested in our entitled How is an Estate Divided Without a Will?

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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