Probate is the legal process instituted in the Probate Court to determine the beneficiaries of a person’s estate and distribute the probate assets to the person’s heirs or beneficiaries. Ancillary probate is an additional probate proceeding that is required in addition to the state where the decedent lived and died usually because the decedent owned property in another state. That property could be real property, a car, boat, farm, vacation home or timeshare. The laws of the state where the property is located will determine the costs of the ancillary probate and in some cases, who receives the property after the ancillary probate.
One of the disadvantages to having an ancillary probate in addition to the one in the home state is that it will add to the total cost of administering the probate estate because of additional filing fees, appraisal fees, and attorneys’ fees. Also if the probate estate is an intestate one, that is, a probate because there was no will or trust, the persons entitled to receive distributions could be different than those entitled to inherit in California.
For example, in California, the estate of a person dying with no will and leaving a spouse and one child would be distributed one-half of the community property to the spouse and one-half to the child. As to separate property, it would be distributed one-half to the surviving spouse and one-half to the person’s child. In New York, if a decedent is survived by a spouse and one child, the surviving spouse would receive $50,000 and one-half of the residue of the estate; the child would receive the balance.
In addition, the costs for the ancillary probate could be different in the ancillary state. In California, attorneys’ fees are set by the California Probate Code. A $500,000 estate in California would result in $13,000 in attorney’s fees. In states such as Nevada and Arizona, attorneys usually work by the hour. In other states such as Florida, attorneys’ fees are to be “reasonable” according to the guidelines of the statute. In Florida the attorneys’ fees for a $500,000 estate presumed to be reasonable are $15,000. Costs for each probate proceeding for such things as filing fees, postage, and copying can also vary from state to state.
If you own property in more than one state, a living trust would avoid the costs of probate in California and ancillary probate in the state where you own property. A revocable living trust also allows you to designate who you want to inherit your assets. If you do no estate planning, then the state or states where your property is located will determine who receives your property. Contact us at Scott C. Soady, A Professional Corporation to see if a revocable living trust is for you or if you find yourself involved in the probate process in San Diego.