If you’ve just moved to the San Diego area from another state, it’s a good idea to consult with a California estate planning lawyer to revise your Last Will and Testament. You should do the same if you’re leaving for another state. Every state has its own probate laws that can affect your estate differently. And if you own property in more than one state, it may become necessary for your executor to open an ancillary estate, which can significantly add to the costs of probate.
The most common reason for an ancillary probate is a deceased person owns real estate outside of his or her home state. For instance, let’s say you live in California and own a house here, plus you own a vacation home in Arizona. After your death, your executor will open a primary estate in California to dispose of your home and personal property here, and an ancillary estate in Arizona just to do deal with the vacation home.
Personal Property May Require Separate Probate Proceeding
Ancillary probate may still be necessary even when there’s no real property. Here’s a recent example from the California Court of Appeals. In this case, Jean Hayes lived in California for 40 years before relocating to Maryland to be closer to her children. Hayes died in 2011 while residing in Maryland. Richard Wall, the executor of Hayes’s estate, discovered that while Hayes owned no real property in California, she did have an interest in a California-based limited partnership, as well as several uncashed checks and savings bonds located in San Francisco.
Under the California Probate Code, Wall could open an ancillary estate in San Francisco County solely based on the existence of this personal property. (The probate court initially refused to grant Wall’s probate petition for reasons the court of appeals later rejected in an unpublished opinion.) The Probate Code specifically provides for ancillary probate of non-residents in any California county where a deceased person had personal or real property. If the deceased owned property in more than one county, the county where a probate petition is first filed has jurisdiction.
Pitfalls of Ancillary Probate
In the Hayes case, the deceased left a Last Will and Testament. That will’s provisions are equally applicable to the disposition of property in California and Maryland. However, if a person dies without a will, his or her property is then subject to distribution under the intestacy laws of the state where the property is located. This could mean that personal property located in California will go to different heirs than similar property located in Maryland or another state.
That’s why it is critical not only to have a will, but also to update your estate plan regularly to reflect changes in your living situation and account for property located outside of your home state. Remember, something as simple as owning a car or boat registered in another state can trigger ancillary probate. If you have any questions or concerns about how out-of-state property may affect your California estate planning, please contact the Law Office of Scott C. Soady right away.
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