Do you Own Real Estate in More Than One State? (Ancillary Probate)

There is a very real fear of Probate in the general public at large. Whether that fear is justifiable, is another issue for other posts.

What if I told you (remember, I am just the messenger), that your Estate could be subjected to two, or more, Probates, in two or more states when you pass away?

Here is a section of law from Idaho Code 15-1-301, that I want to draw your attention to:

15-1-301.  TERRITORIAL APPLICATION. Except as otherwise provided in this code, this code applies to (1) the affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state, (2) the property of nonresidents located in this state or property coming into the control of a fiduciary who is subject to the laws of this state, (3) incapacitated persons and minors in this state, (4) survivorship and related accounts in this state, and (5) trusts subject to administration in this state.

How are non-residents subject to Idaho’s territorial power? Simple answer; if your estate triggers Probate in Idaho, Probate is required, in Idaho.

Enter Ancillary Probate.

If you own real property, in your individual name, in more than one state, and you die, Probate will be required in every state you own real property, because the Probate law of the state govern the property of nonresidents located in this state.

When I am asked whether a potential client needs a Revocable Living Trust, this is the first question I ask.

A Revocable Living Trust is a wanted item for many people (for many different reasons), but one is not needed by most. Except those that own real estate in multiple states.

If you own property in more than one state, creating and funding a Living Trust or Family Trust not only avoids probate in the state where the deceased person lived, but also avoids the requirement of ancillary probate(s) in the other state(s).

In most cases, the cost of creating a trust is minimal when compared to the cost of having to administer an estate in multiple states.