Probate is a word that is often dreaded by families when dealing with the death of a loved one. Last week we explained the basics of probating a will. We assist clients with the probate process and sometimes run into scenarios where they must probate in multiple states.
Do you own property in more than one state?
If you own property in different states (imagine you live in New York but winter in Florida or live in Georgia but have family property in Ohio), your estate could be complicated for those who survive you. Real estate is governed by the laws of the state in which it is located, not by the laws of the state where the owner lives. So, when a person dies, probate must be done in the state where they live and in the state(s) where any of their property is situated. Although doing probate in one state is usually not too big a deal, having to go through two separate state processes can be quite a headache.
Probate in a second (or third) state is called “ancillary probate.” Probate begins in the state where the deceased lived, and then the ancillary probate process is started in the state(s) where the property is located. This process often means more bother and expense for the executor of the estate, and the executor will likely need to find an attorney in the other state to help handle the probate.
Can I avoid Ancillary Probate?
Many property owners don’t think about this complication, but it is good to know there are simple ways to avoid ancillary probate. Two possible ways you can avoid a complicated probate situation when you own property in different state(s) are:
- Owning the property as joint tenants with someone else. This option allows you and another person(s) to own the property. At the time of death, the property can transfer to the other joint owner and not have to be probated.
- Putting the property in a trust. Assets held in a trust are not part of the probate process. Those assets are distributed based on the trust instructions, and this process negates the need for any probate process even for property located out-of-state.
These are just a couple of examples of how you can plan for a smooth probate or avoid it completely. It is important you use an experienced estate planning attorney to assist you so there are no surprise obstacles for your family after your death. Call Hurley Elder Care Law at 404-843-0121 for a complimentary phone consultation.
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