What Is An Ancillary Proceeding And Will You Need To File One?
When someone dies in the state of California, and a probate action needs to be filed, it is filed in California. That seems to make some sense. But often, things aren’t that simple.
That’s because people often have property in other states, even if they live and die in California. Additionally, many people have plenty of property here in California, but maintain a residence elsewhere, either full or part time.
Two Probate Cases
When that happens, there may actually need to be two probate cases open, a primary, and what is known as an ancillary probate action, in whatever other state the deceased dies in, or in whatever other state the decedent had property in, if that state is not California.
The primary probate action is filed wherever the deceased lived. Sometimes, that isn’t so clear. Many people don’t maintain homestead designations, leaving a probate court to look at the intent of the deceased, to see where he or she intended to live on a permanent basis. Other documents, like voting records, bank accounts, or mailing addresses, may give insight into where the deceased actually intended on making his or her permanent residence.
Real Property and Land
As a general rule if someone has real property in another state, a probate action must be filed in that other state. This may necessitate a probate action being filed in multiple states. These are called ancillary proceedings
The opposite is true as well. Someone who may never live in California, and who never intended to live in California, may need a probate action in California when they pass away, if they owned property or land in California.
However, if the total value of the real property is less than $166,250 (a number that does change from time to time), an ancillary proceeding in California will not be necessary—although realistically, most real property will exceed this dollar figure. If it does not, and the estate is looking to avoid the necessity of an ancillary proceeding, the estate can file a small estate affidavit with the probate court.
Property that is not real estate can generally be probated in whatever state the person last resided, even if the property is located in another state. Again, in some cases, this may give rise to issues over where in fact the deceased resided, if the deceased split time amongst two states, or lives equally in two states.
This is, again, another reason why good estate planning is a necessity, because if you can avoid probate in another state, you avoid the time, and expense, of multiple probate filings, utilizing different state laws. None of these rules related to ancillary proceedings are applicable, if there is no probate action needed in the first place.
Use today to plan for tomorrow. Call the Torrance will and estate attorneys at Samuel Ford Law today for help avoiding probate and making your estate administration as easy as possible.