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What You Should Know if You are Managing An Out-Of-State Probate

Jesse A. Block - Kennesaw Elder Law Attorney Nov. 9, 2022

Owning property in multiple states is becoming more and more of a common practice. Imagine the benefits of having multiple residences to choose between when deciding where to spend your time. For example, owning property in a warmer climate provides a getaway while the primary residence is covered in snow. Or vice-versa--for those who prefer the cold.Lawyer talking to a judge

While owning properties in different states can be enjoyable, it does complicate the probate process a bit. Why? States set their own laws regarding property transfer, therefore owning property in different states exposes each of the properties to their respective state’s laws when ownership of the property comes into question. When this happens, changes to essential estate planning components are necessary to protect your property interests.  

Let’s clear this up a little bit. I’ve been throwing the term “probate” around; however, it may be necessary for me to clarify what is meant by that. Probate is a process that an estate goes through after a person dies. It's the court-supervised process in which a will is proved valid or invalid, assets are gathered and distributed, and debts and taxes paid. If there's no will or if there is a question about the validity of the will, then probate can become very complicated.

Real property can’t be left to decay from lack of maintenance--that would be a waste of valuable, finite real property. But who possesses claim of right to real property when a property-owning individual passes away?

Probate for a property located in a single state can be a taxing and long process. Imagine having to go through multiple probates regarding properties in multiple states. This exposes heirs to more expended time and money--having to juggle the multiple processes as well as hire additional counsel. Why are multiple probates--also known as ancillary probates--necessary? Because state courts have jurisdictional limits meaning, for example, that a state probate judge in Georgia has no authority to decide on matters regarding real property in Alabama. And the physical location of real property is the deciding factor as to which court decides the matter.

If you are an owner of real property in multiple states, then ancillary probates are in your loved ones’ futures--especially your executor, and anyone else who will take an active role in the administration and allocation of your estate after you pass. An ancillary probate proceeding is a separate probate proceeding that occurs in another state. This type of proceeding is required if the deceased person owned property in a state other than where he or she lived, or if the decedent died without leaving a valid will.

Ancillary probate proceedings are required to transfer title to out of state property to heirs, known as devisees, who inherit property from a decedent. Some states require an ancillary probate proceeding before transferring real estate, bank accounts and other assets from one state to another.

However, there are ways for you to make the process easier or potentially avoid ancillary probates altogether.

  1. Death is never easy to talk about. Typically, it is a dark, gloomy subject that most individuals avoid speaking of. Out of respect when the topic is the death of another, and out of fear when it comes to one’s own departure from this world. Realistically though, it doesn’t have to be. How? Own it. Own the fact that we’re all mortal--including ourselves. This allows us to better cherish our loved ones, and to take responsibility for reviewing and preparing the record of our lives prior to our own passings--thus reflecting on the lives we built as well as protecting our loved ones. Communication. That’s the key. Don’t be scared to talk to your loved ones about the inevitable. Evading the subject only increases the burden when it comes due.

  2. As mentioned before, a single in-state probate process alone can be taxing and burdensome. For an individual who is entering into the judicial arena on their own--without guidance from a navigator--while also bearing grief, the process can range from daunting to overbearing. However, lucky enough, navigators for the process do exist. Estate planning attorneys devote their entire careers to remaining up-to-date with probate laws, allowing them to navigate the courts much easier than the average person. They can make sure that you create the proper legal instruments to protect your property, loved ones, and peace of mind. Don’t torture yourself by taking on a probate alone. Hire a Kennesaw Estate Planning attorney to make the process much easier on you, allowing you more time to focus on your loved one’s during a time of loss.

  3. Familiarize yourself with the idea of a Trust if you haven’t. This will come in handy when you communicate with your loved ones and attorney about your estate. What is a trust? A trust is a legal instrument constructed by an individual or individuals for the purpose of protecting assets, as well as for providing for the family’s future. Trusts exist as separate legal entities from their creators, and are subject to the probate laws of whichever state they are created in. Trusts allow owners of property in multiple states to place their properties into a trust--and generally, trusts are governed by the laws of their states of creation--therefore ancillary probates can be avoided. Basically, it’s a way to keep the entire process in one state and maybe avoid probate altogether.

Simple, huh? They’re expecting us to start saving every receipt, scavenge through boxes and boxes of records to find a property tax statement or to dig out all of those tax returns from long before? No, here at Block Law, we make it our mission to make estate planning as simple and efficient as possible for our clients. While--throughout the process of working together--we might need certain documents, we’re not here to audit your life. We are here to help you decide the best course for you and your estate.

Give Block Law a call today at (770) 387-4529, and let us help bring you peace of mind during your time of loss.