By Lane V. Erickson, Idaho Estate Planning Attorney
We live in an amazing time. With modern conveniences, and all the technological advances that have been made, a person can literally travel and experience just about any location in the world whenever they want. Because of this, people have become more mobile in this generation than any generation before. This means that it is not uncommon for people to own land or other property in different states within the United States or even in foreign countries. While this is a good thing, it can create some complexities that need to be considered when it comes to estate planning. Whether it is a vacation cabin, or a summer home, each of these properties needs to be considered when it comes to including them within your own estate plan. This is where we are confident that we can help you.
At the Racine law office, we have created a premier team of Idaho estate planning attorneys who have assisted clients for over 70 years in creating customized estate plans to meet their own particular needs. We have helped numerous clients complete their own estate plan that includes provisions concerning all the different properties they may own throughout the United States when they pass away. Our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley, each of whom have experience in helping clients with a variety of estate planning issues, including ancillary probate planning.
Many of our clients have heard of ancillary probate. However, only a few clients understand what this means. If you, a family member, or a loved one who has passed away owns real estate in different States and you are concerned about an ancillary probate, we can help you. Below are three specific things that you should know to better understand whether an ancillary probate will be needed for you or your circumstances.
Do I Need an Ancillary Probate?The term ancillary is a word that lawyers use that means a secondary or smaller issue that must be resolved along with the main issue that exists. When it comes to probate or estate planning, an ancillary probate simply means a secondary proceeding that must be done in order to complete the original probate proceeding.
An ancillary probate is usually necessary when a person owns real estate in different States. The reason for this is that there really can only be one probate done for an individual. This leads to the next question that almost always comes up when we are talking with clients about an ancillary probate.
Where Does the Ancillary Probate Happen?Under current law a probate must be completed where the person resided when they died. This still gives an individual the ability to move wherever they want to be and even to travel quite regularly as well. However there really can only be one residence or domiciliary at a time. Because they’re really can only be one residence at a time, this creates a limitation on what can be done during the original or main probate. The reason for this is that a State only has the legal authority to control what happens to the property (including real estate) located within its own State’s boundaries. In other words, one State cannot issue an order or judgment that controls property that is located in a different State. This is where an ancillary probate comes in.
Through an ancillary probate, the original or main probate will be started where the person who died resided when they were alive. This state has the authority to control that particular probate. The probate would include the appointing of a personal representative, or an executor of the estate. This person is tasked with the responsibility of carrying out all the instructions left by the decedent and in distributing the property in the estate. Once the personal representative is appointed, they then have the ability to look at all the other States where the decedent owned property. It is in these other States that an ancillary probate would occur.
What is the Process for an Ancillary Probate?The procedure for an ancillary probate is quite simple. The person who was appointed as the personal representative in the original probate, files a petition in the other States where property is located. The petition provides verified information about the probate that is occurring in the residence State. This verified information is the evidence that another State court needs in order to know that a person is authorized to act as the personal representative. The petition simply asks the other States to recognize that appointment and to grant authority to the personal representative to deal with any property located within its State’s boundaries.
Once the other States’ courts are satisfied, they will issue an order recognizing the personal representative, and issue letters of administration, or letters testamentary that provide proof that the personal representative is authorized to deal with property located within its State’s boundaries. The personal representative is then authorized to sell the property, or deed it to another individual, or to transferred it in some other way consistent with the instructions of the person who died. Once these transfers are completed, the ancillary probates can be closed. After all the ancillary probates are completed, and the original probate requirements have all been meant, the personal representative can close the original probate as well.
If you have concerns about whether an ancillary probate will be required for your estate, or for the estate of a family member or loved one who has already passed away, we can help. We have assisted with ancillary probates both within the state of Idaho and outside of Idaho’s boundaries in other states aw well. We are confident that we can help you too!
Enlist an Idaho Estate Planning and Probate Attorney to Help YouOur experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation with the Racine Olson team. You can also email us directly at racine@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.