Ancillary Probate: Are additional steps required to sell a decedent’s property located in another state?

Handling the loss of a loved one is already a difficult time, but there can be additional stress if you find yourself appointed as executor in the decedent’s Will, or you must apply to be an administrator if there is no Will.  Probate is the court-supervised process an executor or administrator takes in settling a decedent’s estate. The probate process can become even more complicated if the decedent owned property outside of the state in which they resided and ancillary probate is required.

Ancillary probate is the probate process that must occur in an additional state because the decedent owned property in that state. The disposition of real estate is always governed by the law of the state in which the property is situated.  Therefore, an executor or administrator for a decedent who resided in one state (the primary state), but owned property in another state (the ancillary state) would have to apply for probate in the primary state and also for probate in the ancillary state.

The complexity of ancillary probate varies from state to state.  Some states provide a streamlined process and will allow the executor or administrator to use the authority granted by the primary state in the ancillary state.  The executor or administrator simply files the primary state’s letters testamentary and a copy of the will or letters of administration with the ancillary state.  Other states will require a lengthier process that resembles a whole new probate application in the ancillary state.

For example, where a Pennsylvania decedent owns a second home at the Jersey shore, Pennsylvania is the primary state and New Jersey is the ancillary state.  The executor would need to file an ancillary probate application with the County Surrogate in the county in which the shore house is located in order to transfer or sell that additional property.  The Will would have to be probated in Pennsylvania prior to being probated in New Jersey. If there is no will, New Jersey requires ancillary administration.  Without the approval of the New Jersey Surrogate Court, the New Jersey property cannot be sold or transferred. Ancillary administration can become costly and may delay the probate process in the primary state if performed incorrectly.

Please feel free to contact Ward, Shindle & Hall with any questions or concerns regarding the ancillary and primary probate processes.