If your loved one owned property in more than one state

How to deal with out-of-state homes or land after a loved one’s death

• Because probate goes through state court, your probate judge does not have jurisdiction over any properties your loved one owned in other states.

• The estate executor or administrator will have to file for probate in the other states, a process known as ancillary probate.

• With each ancillary probate, you’ll add time and expense, so avoiding it through estate planning is strongly advised.

• If you live in a state that allows beneficiary or transfer-on-death deeds for property, that may be a way you can avoid ancillary probate as well.

The probate process can be long and arduous, depending on the details of your loved one’s estate. Any complications can make it stretch out even longer—and out-of-state property is a time-consuming and expensive issue for any estate. So, how do you deal with a loved one’s estate that includes homes or land in more than one state?

First, it helps to understand the jurisdiction issues that out-of-state property creates. Probate—the process where the will is authenticated, the value of the estate is assessed, and the estate is ultimately distributed to beneficiaries—is handled by a state court where your loved one lived. But that court has no jurisdiction over property in other states.

Out-of-state property cannot therefore be part of the primary probate process. Separate processes will have to be initiated to account for the real estate your loved one owned in other states.

Ancillary probate

Among an executor’s first tasks is filing a loved one’s will in probate court in the state where they lived. That begins what is called domiciliary probate. In each additional state where your loved one owned property, their will must likewise be submitted to probate court. That is known as ancillary probate.

If you are the executor or administrator of the estate, you can make your task a little easier by hiring a local lawyer or representative to oversee and move along the ancillary probate process.

Also, take comfort in knowing that once the domiciliary probate court accepts the will, states with ancillary probate proceedings typically do as well with little fanfare.  

And depending on the laws of the states where your loved one owned property, you might be able to avoid having to hire or appoint a local representative.

In such cases, the state will grant local authority to you as the so-called foreign executor after you have filed copies of documents for domiciliary and ancillary probate. Check online or consult local estate lawyers to find out if such circumstances apply in your situation.

Ancillary pitfalls

Initiating ancillary probate proceedings incurs extra expenses your loved one’s estate will pay. There are court fees associated with filing a will, fees for a local lawyer, reimbursement of travel expenses, and more.  

In the event your loved one did not designate heirs or even leave a will, determining who gets what may differ based on differences in how states decide who has rightful claims to property. Figuring that all out will take time, patience, and additional financial resources. 

Preventative steps

If you have a family member who owns property elsewhere, encourage them to take steps now to avoid avoidance of ancillary probate down the line. 

Encourage them to change sole ownership of property to joint ownership, for instance, so that the co-owner may inherit the property without the introduction of probate.

Alternatively, your loved one might put property in a revocable living trust, which likewise ensures the property will not go into probate.

Beneficiary deeds

Finally, more than half of all states allow beneficiary or transfer-on-death deeds for property, which allows your loved one to designate an heir for specific property without the item entering probate.

To do this, your loved one must get a signed deed notarized and filed with the local land records office. Such deeds only take effect after a loved one passes away.

You do not need to be a resident of a state that allows transfer on death deeds to use them; however, the property you want to transfer must be registered in a state that allows such deeds.

These tend to be more economical methods of ensuring your property goes where you want it to, compared to trusts. But they generally prohibit heirs from selling the property for three years from the time of deed transfer. As always, check with a local estate lawyer to find out if you and your loved one can use beneficiary deeds. 

If ancillary probate cannot be avoided, your best bet as executor may be to take a deep breath and proceed, knowing your workload ahead may be heavy but you will get through it. Ask for help when you can. Take time to grieve your loss and sit with fond memories of better days that you shared with your loved one.

You may be eligible for free bereavement support. Empathy can help with everything from funeral planning to estate administration, with step-by-step guidance and real-time expert support. Many people get free premium access to Empathy as a benefit with their life insurance claim. We partner with New York Life, Guardian Life Insurance Company, Bestow, Lemonade, and other leading carriers. When you make your life insurance claim, talk to your representative about whether Empathy is a benefit they offer.