There is a need for ancillary probate when you own property outside your state of residence at the time of your death. When a Montana resident has separate property in Texas, probate must be completed in both states. Ancillary probate is required for the transfer of ownership to occur. It is important to note that this extends to any residential property. For example, you could own a second piece of real estate as a vacation home or investment property.
How Ancillary Probate Can Help
Let’s continue with the example of the Montana resident who owns a home here in Texas and passes away. Before an heir can legally hold the property’s title in Texas, some legal action must be undertaken to transfer the property. Ancillary probate may be the best or only option available. (We use the term “may” because the deceased may have used specific estate planning techniques to avoid ancillary probate, and we will elaborate on that in a moment.)
Two of the easiest ways to get the property to the beneficiary is to use a Transfer on Death Deed or hold the property in a Trust. However, if neither of these options are used and the deceased person had a will, that will or probate records from the state of residence (if applicable) will need to be submitted to the court in Texas.
What if the deceased left behind a rental property in Texas and there are tenants in it? Who will manage the property during probate? This is one of the reasons ancillary probate exists. If the deceased left behind a valid will, the estate’s executor could petition for letters testamentary through the ancillary probate process. Once issued the Texas Letters Testamentary will allow them to manage the Texas property. This also extends to situations where the deceased didn’t have a will. In this circumstance, an administrator could potentially be appointed to maintain and oversee the property.
Personal and real property can be subject to ancillary probate, but intangible property cannot. Examples of intangible property include bank and investment accounts.
Should I Avoid It?
There is no universal answer, and you should speak with your estate planning attorney about your out-of-state properties. That said, we generally encourage people to avoid it. Having to deal with ancillary probate adds time and money to the process. Some states have beneficiary deeds and planning tools for you to use, but you need to plan ahead to take advantage of them.
There is an art and science behind estate planning, and attorneys may prefer specific strategies because they feel it is the best way to serve their clients. At the Law Offices of Debbie J. Cunningham, we usually begin the estate planning process by drafting a will. However, when you have properties in other states, we may recommend you create a trust. With a trust, when you pass away, the property will be dealt with by your successor trustee and will avoid the ancillary probate process.
Speak with a Compassionate & Skilled Estate Planning Attorney
The Law Offices of Debbie J. Cunningham, PLLC, are highly experienced in drafting wills, creating trusts, and helping clients through probate. When you face probate, we will ensure the easiest and most cost-effective way to resolve the estate. For more information about how we can assist you, contact us to schedule a consultation.
Law Offices of Debbie J. Cunningham
Latest posts by Law Offices of Debbie J. Cunningham (see all)
- Estate Planning Guide For Single Parents - August 1, 2024
