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WHAT IS AN ANCILLARY PROBATE AND DO I NEED TO DO ONE?

By Lane V. Erickson, Idaho Estate Planning Attorney

As with many professions and situations the world of estate planning and probate is filled with many technical terms, steps that need to be completed, and processes that need to be followed, in order for everything to be done right. Having been an estate planning attorney now for over 20 years I understand that my clients will not have the same understanding, knowledge, and experience that I have. The good news is, I use all of these things to benefit and help my clients in every situation they bring to me and with every question they need to have answered.

One of the questions that came up recently from a client was whether an “ancillary probate” needed to be done as part of the administration of their deceased parent’s estate. First of all, I was impressed that my client knew the term “ancillary probate” and was able to ask this specific question. After reviewing the situation, we were able to determine that an ancillary probate was not necessary.

So, what exactly is an ancillary probate, and who needs to do one? The word “ancillary” is defined to be the providing of aid or support in a way that supplements something else. It also is defined to be something that is secondary in position either in importance or as a step in a specific process.

When it comes to the world of probate law, the word “ancillary” means “secondary” or “supplemental”. In other words, there would be a primary probate, and an ancillary probate which would be two separate probates. An example will help illustrate what this all means and the specific types of situations where an ancillary probate is necessary.

Let’s suppose that you are doing the probate for your recently deceased parent. Your parent resided in Idaho in the same city that you did. Additionally, your deceased parent also owned a summer home located in a different state. In this example, the primary probate would be done in Idaho in the county where your parent resided when they passed away. Once that has been done, and a personal representative has been appointed, that person would then be required to do an ancillary probate in the state where the summer home was located.

In the primary probate, a personal representative is appointed by the court. This is usually done through specific documents that provide evidence to the whole world that the personal representative has legal authority to deal with the property and assets of the deceased parent. Once these documents have been provided by the court, these documents are taken to the summer home state and filed with the court there. This court then issues additional legal documents from that state giving the personal representative authority to deal with the summer home.

The reason all this is necessary is because while your parent was alive, they had the ability to sign deeds and other legal documents that can transfer to someone else either their own home where they live, or the summer home in the other state. However, once your parent dies, there is no one who had legal authority to sign deeds or other legal documents to transfer those properties away. It is the probate process, and the documents provided by the courts, that give legal authority for the personal representative to transfer these properties.

It’s also important to understand that the legal documents provided by the primary probate state, or the state where the parent lived, have no legal effect in the state where the summer home is located. This is because each state is only required to follow their own laws.  Because of this, an ancillary probate is required in the summer home state so that court can provide authority to the personal representative to transfer that property as well.

If you have questions or concerns about whether an ancillary probate is needed for your family member or loved one, we can help. We have assisted numerous clients through this process, and we are confident that we can help you too. Please contact us today for a free 30-minute probate consultation where we can answer your questions and help you determine what steps are necessary.

ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU

If you have any questions about your estate or how to simplify your plans for your family and loved ones, we can help.  Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Pocatello. You can also email Lane Erickson directly at lane@racineolson.com. We will answer your questions and will help you solve your Idaho estate planning problems. I have helped numerous clients create their own customized estate plans and I’m confident that I can help you too.

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