What Is Ancillary Probate?

If your loved one lived in one state but owned a vacation cabin, rental home, or piece of land in another, their estate may have to go through probate in more than one place. That second, out of state probate is called ancillary probate, and it often catches families by surprise at exactly the moment they are least equipped to deal with extra paperwork. This topic is part of Washington probate and estate administration.

A Second Probate in a Second State

Ancillary probate is a secondary probate proceeding opened in a state other than the one where the deceased person lived. The main probate, called the domiciliary probate, happens in the state where the person made their home. But probate courts generally only have authority over property located within their own state, and real estate in particular is governed by the law of the state where it sits. So when a decedent owned real property outside their home state, the primary probate cannot reach it directly, and a separate proceeding has to be opened where the property is located. Related guides cover Can Family Members Challenge Probate Decisions? and Can Probate Be Avoided?. Cross-border property can also complicate the state and federal estate-tax analysis.

The most common trigger is real estate. A Washington resident who owned a condo in Arizona, or an Oregon resident who owned a home in Snohomish County, leaves behind property that the home state's probate court cannot transfer on its own. Ancillary probate exists to clear title to that out of state real estate so it can pass to the heirs or be sold.

How It Works in Washington

Washington sees ancillary probate from both directions. Sometimes a nonresident dies owning real property in Washington, and Washington becomes the ancillary jurisdiction. Other times a Washington resident dies owning property in another state, and it is Washington that handles the main probate while an ancillary proceeding runs elsewhere.

When a nonresident's will has already been admitted to probate in their home state, Washington provides a route to recognize it here rather than starting from scratch. Under RCW 11.20.090, a will that has been probated in another state or territory, or in a foreign country, may be admitted to probate in Washington on production of a copy of the will together with the original record of its probate, certified by the clerk of the court where it was probated, or by the judge if there is no clerk, under the court's seal. In plain terms, the family brings a properly certified copy of the out of state will and the order admitting it to probate, and Washington can admit that will here so the local real estate can be administered. This is what allows a Washington ancillary probate to build on the work already done in the domiciliary state instead of relitigating whether the will is valid.

The reverse situation, a Washington resident owning property elsewhere, means the family will be dealing with another state's probate rules for that property. Each state has its own procedures, deadlines, and costs, which is part of why owning real estate in several states can complicate an estate.

Why Families Want to Avoid It

Ancillary probate is not inherently dangerous, but it is inconvenient and it adds cost. Instead of one probate, the family runs two, potentially hiring attorneys in two states, paying two sets of court and administrative expenses, and coordinating between proceedings that move on different schedules. For a grieving family, the duplication of effort and expense is the real burden. It also slows things down, since the out of state property usually cannot be fully resolved until the ancillary proceeding is complete.

Because of this, a great deal of estate planning is aimed at keeping out of state real estate out of probate altogether. The good news is that ancillary probate is often avoidable with planning done during life.

Common Ways to Avoid Ancillary Probate

One of the most reliable tools is a living trust. When a person transfers their out of state real estate into a revocable living trust during their lifetime, the trust, not the individual, owns the property at death. Because the property is held by the trust, it does not pass through probate at all, and there is no need for an ancillary proceeding in the state where it sits. The successor trustee simply administers the property according to the trust's terms.

Another tool available in Washington is a transfer on death deed, which lets an owner name a beneficiary who automatically receives the real property when the owner dies, without probate. For property located in Washington, a properly executed transfer on death deed can move a home or parcel to the named beneficiary outside of the probate process. For property in another state, the availability of a similar deed depends on that state's law, so it is worth confirming whether the state where the property sits recognizes such deeds.

Other arrangements, such as certain forms of joint ownership with survivorship rights, can also move property outside probate, though each comes with its own tradeoffs that deserve careful thought rather than a do it yourself approach. The right tool depends on the property, the state it is in, and the rest of the estate plan.

Plan Now to Spare Your Family Later

If you own real estate in more than one state, or if you are handling the estate of someone who did, ancillary probate is worth understanding before it becomes a problem. The Law Office of Chad Foster helps Snohomish County families plan around out of state property and, when a second probate is unavoidable, guides them through it with as little friction as possible.