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Will your California estate require ancillary probate?

On Behalf of | Nov 30, 2022 | Estate Litigation

Many people choose estate planning in order to keep the transfer of their estate as simple as possible. However, if you own property in multiple states, ancillary probate law may prolong the finalizing of your estate.

Defining ancillary probate

Probate refers to the transfer of assets previously owned by a deceased individual. If the deceased individual only owns property in one state, this transfer process occurs in the probate court of the same state.

However, if the deceased owns property in more than one state, more than one court becomes involved. Ancillary probate refers to the transfer of property outside the primary state of residence.

Foreign vs. California domiciliary

The state of California handles two types of ancillary probate cases. Foreign domiciliary refers to anyone owning property inside the state of California, while their state of residence remains in another state. California domiciliary refers to someone who lived primarily in California but has property elsewhere.

Concerns about the primary state of residence

In some cases, the remaining beneficiaries may dispute which state the deceased claimed as their primary residence. The primary residence properties undergo probate before the ancillary probate can begin, and the beneficiaries may want certain properties taken care of first.

If a dispute arises, courts will consider a few factors to determine a deceased individual’s primary state of residence. These factors include:

  • State which issued the deceased’s driver’s license
  • Where the deceased registered to vote
  • The address that the deceased used to receive mail

Avoiding ancillary probate

The process of transferring out-of-state property may take years to complete. The law does allow you to avoid the ancillary process by proper estate planning and may include the use of trusts or transfer-on-death deeds.

Planning for the future

Proper estate planning may reduce the stress of your beneficiaries and help them avoid years in court. Today may be the day to include out-of-state property in your estate planning.