When someone passes away owning real estate in more than one state, their estate does not go through probate just once. Each state where the person owned real property has jurisdiction over that property, meaning the family may be facing multiple probate proceedings in multiple court systems simultaneously. This process is called ancillary probate, and it can add significant time, cost, and coordination demands to an already difficult situation.
Why Each State Has Its Own Rules
Real property is governed by the laws of the state where it is physically located, not the state where the owner lives. If a California resident passed away owning a vacation home in Arizona and a rental property in Nevada, the executor would need to open a primary probate in California and then ancillary probate proceedings in both Arizona and Nevada.
Each of those states has its own filing deadlines, court procedures, required notices, and fees. What works in California probate court does not automatically carry over to another state’s system.
These jurisdictional differences matter practically because an executor who is not admitted to practice law in the other state will typically need to retain local counsel there. That means coordinating between multiple attorneys, tracking separate court calendars, and managing costs across jurisdictions. For families already dealing with grief and the administrative demands of settling an estate, this added layer can be genuinely overwhelming.
What Ancillary Probate Involves
Ancillary probate follows a similar general structure to primary probate but is handled entirely by the courts in the state where the property sits. The executor typically must:
- File a petition in the ancillary jurisdiction’s probate court
- Provide a certified copy of the will and the primary probate court’s documents
- Satisfy that state’s creditor notice requirements
- Pay any applicable state taxes or fees before assets can be transferred
- Obtain a court order authorizing the transfer or sale of the property
Some states have simplified procedures for smaller estates or for situations where the out-of-state property is the only asset requiring probate there. Others have more demanding requirements regardless of estate size. The timeline for ancillary probate varies widely. Some proceedings wrap up in a few months, while others can stretch considerably longer depending on the state’s court backlog and the complexity of the estate.
How to Avoid Ancillary Probate With Proper Planning
The good news is that ancillary probate is largely avoidable with the right planning in place before death. Several strategies can keep out-of-state property out of the probate process entirely:
- Revocable living trust: Transferring out-of-state real estate into a revocable living trust during your lifetime is one of the most reliable ways to avoid ancillary probate. When the property is held in a trust, it passes to beneficiaries according to the trust’s terms without court involvement in any state.
- Joint tenancy with right of survivorship: Property held in joint tenancy passes automatically to the surviving co-owner at death, bypassing probate entirely. This can work well for spouses or co-owners who intend to leave property to each other, but it can create complications if the surviving owner later wants to change beneficiaries or if both owners pass away simultaneously.
- Transfer-on-death deed: Some states allow owners to record a transfer-on-death deed that names a beneficiary to receive the property at death without probate. California allows these deeds for real property, and a number of other states do as well, though the rules and availability vary.
- LLC or entity ownership: Placing real estate into a limited liability company or other entity can convert what would be real property in multiple states into a membership interest (your ownership stake in the LLC, rather than direct ownership of the real estate itself) that is governed by the owner’s home state law. This approach requires careful legal and tax analysis but can significantly simplify the estate administration process.
The right strategy depends on the type of property, how it is currently titled, your overall estate plan, and the laws of the state where the property sits. None of these approaches is one-size-fits-all, and some can have unintended consequences if implemented without proper guidance.
What Happens If No Plan Was in Place
If a loved one has already passed away and out-of-state property is part of the estate, ancillary probate may be unavoidable. The executor’s first step is to identify all real property the person owned at the time of death and to confirm how each parcel was titled. Property that was already held in a trust, in joint tenancy, or with a transfer-on-death deed may pass outside of probate. Property held in the deceased person’s name alone will likely require ancillary proceedings in that state.
From there, the executor should consult with counsel in each ancillary jurisdiction early. Waiting too long can trigger missed deadlines, creditor claims, or complications with the property itself, particularly if it generates income or requires ongoing maintenance during the administration period. Working with a San Diego probate attorney experienced in coordinating multi-state estates can help keep the process organized and avoid missteps that extend the timeline.
California Residents With Property in Other States
California has one of the more involved probate processes in the country, and layering ancillary proceedings in one or more additional states on top of it multiplies the burden. Many families do not discover the issue until after a loved one has passed away, at which point the options narrow considerably.
Building an estate plan that accounts for every piece of real property, wherever it is located, is the most reliable way to protect your family from this situation. That includes reviewing how property is titled, whether a trust is in place, and whether beneficiary designations or deed structures in other states are current and consistent with your overall plan.
Contact a San Diego Estate Planning Attorney at Frisella Neilson, APC
Attorney Lisa J. Frisella works with San Diego clients on multi-state estate planning and can help identify gaps before they become problems for the people you leave behind.
If you are managing an estate with out-of-state property or want to make sure your own plan covers everything, our San Diego probate team at Frisella Neilson, APC is ready to help. Fill out our online contact form or call (619) 260-3500.
We serve all areas in San Diego and throughout California.
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