If you own property in more than one state, your estate plan requires an additional level of attention. A vacation home in Florida, a cabin in Maine, an investment property in Massachusetts, or real estate elsewhere may be an important part of your financial portfolio, but owning real property outside New Hampshire can also complicate the administration of your estate after your death. Specifically, your loved ones may discover that your estate must go through probate in New Hampshire and a second proceeding known as ancillary probate in another state. Ancillary probate can increase the amount of time, expense, and administrative work required to settle your estate. Fortunately, ancillary probate is often avoidable when you identify the potential problem and incorporate the appropriate planning strategies into your estate plan. With that in mind, the attorneys at Legacy Care Law Firm explain what you need to know about ancillary probate in New Hampshire.
What Is Probate?
To understand ancillary probate, it helps to first understand the fundamentals of the traditional probate process. When you die owning assets individually that do not transfer through another mechanism, those assets may become part of your probate estate. Probate provides the legal process through which those assets are administered and ultimately transferred to the appropriate beneficiaries or heirs.
If you leave behind a valid Last Will and Testament, the Will generally identifies the people or organizations that should receive your probate property. It also typically nominates the person you want to oversee administration of your estate. If you die without a valid Will, New Hampshire’s intestate succession laws determine who inherits probate property, and the court appoints someone with authority to administer the estate.
Although probate serves an important legal function, the process requires time and involves administrative and professional expenses. When property in another state necessitates a second probate proceeding, those burdens can increase considerably.
What Is Ancillary Probate?
Ancillary probate is an additional estate administration proceeding that may be necessary when you die owning real estate in a jurisdiction other than the state where your primary estate is being administered. For example, assume you are a New Hampshire resident and own your primary residence in New Hampshire along with a condominium in Florida. Following your death, your primary probate proceeding may occur in New Hampshire, but because the Florida condominium is located in another state, a New Hampshire probate court generally cannot accomplish everything necessary to transfer title to that Florida real estate. A separate proceeding, referred to as ancillary probate, may therefore be required in Florida.
Why Does Out-of-State Real Estate Create This Problem?
Real property is generally governed by the laws of the jurisdiction where it is physically located. Consequently, the authority of the court administering your New Hampshire estate does not simply extend to real estate throughout the country. This can produce a situation in which your estate is effectively being administered in two jurisdictions. Your primary estate proceeding addresses your New Hampshire probate property, while the ancillary proceeding addresses real property located in the other state, and the rules governing those proceedings may differ. The other state may have different court procedures, filing requirements, deadlines, fees, terminology, and rules governing estate representatives. Your Executor may consequently need assistance from an attorney who practices in the state where the additional property is located. If you own real estate in several states, the potential complications multiply. Instead of one probate proceeding and one ancillary proceeding, your estate could conceivably require proceedings in several jurisdictions.
A Vacation Home Can Be an Easily Overlooked Source of Ancillary Probate
Vacation property frequently creates ancillary probate concerns because it is easy to think about the property primarily in personal rather than estate planning terms. Perhaps you purchased a condominium where you spend the winter, inherited a family cottage, or bought a lake house where your children and grandchildren gather during the summer. While you may view the property as a place to relax and create family memories, it is also an asset that must eventually be transferred to someone after your death. If you own that property individually when you die, your existing New Hampshire estate plan may not be enough to avoid ancillary probate in the state where the property is situated. For that reason, whenever you purchase or inherit out-of-state real estate, you should consider how ownership of that property fits into your existing estate plan.
Why Might You Want to Avoid Ancillary Probate?
Ancillary probate can lead to multiple probate proceedings which can create avoidable burdens for the people responsible for settling your affairs. Administering an estate in another state may involve additional filing fees, court expenses, attorney fees, and other professional costs. Those expenses are generally paid from estate assets, meaning they can ultimately reduce the amount available for beneficiaries. In addition, your Executor may already be responsible for administering your New Hampshire estate. Requiring that person to coordinate another proceeding in a different jurisdiction adds another layer of responsibility during an already demanding process.
Moreover, before the out-of-state property can be distributed or otherwise handled, the requirements of the jurisdiction where the property is located must be satisfied. Meanwhile, ownership responsibilities do not disappear. Real estate may continue to generate property taxes, insurance premiums, utilities, association fees, maintenance expenses, and repair costs. Rental or commercial property may require active management while the estate administration proceeds.
Does Having a Will Prevent Ancillary Probate?
One of the most common estate planning misconceptions is that having a Last Will and Testament allows your assets to avoid probate. A Will does not prevent probate. Instead, it provides instructions regarding how probate property should be distributed. The same principle applies to ancillary probate. Your Will remains an essential component of your estate plan, but if probate avoidance is an important goal, you may need additional planning tools.
Using a Revocable Living Trust to Avoid Ancillary Probate
One of the most commonly used strategies for addressing out-of-state real estate is a revocable living trust. When you create a revocable living trust, you typically serve as the initial Trustee and maintain control over the trust assets during your lifetime. You can generally continue using and managing the property while you remain capable, subject to the terms of your trust. You also designate a successor Trustee who can assume responsibility when you die or become incapacitated. The important step for ancillary probate purposes is properly transferring ownership of the out-of-state real estate into the trust.
If the trust owns the property rather than you owning it individually at your death, the property generally does not need to pass through your probate estate merely to transfer according to your estate plan. Instead, the successor Trustee can administer the property according to the instructions in the trust agreement.
Joint Ownership May Provide Another Option
Depending on your circumstances, joint ownership with survivorship rights may also be used to allow real estate to be transferred to the surviving owner without probate. If you own an out-of-state property with another person and the form of ownership provides an effective right of survivorship, your interest may pass to the surviving owner automatically when you die instead of passing through your probate estate. Keep in mind, however, that adding another owner can give that person immediate legal rights in the property. The change may also have tax, creditor, control, and family implications. If you add an adult child as an owner, for example, you may create consequences that extend far beyond simplifying the transfer at your death.
Do You Have Questions Ancillary Probate in New Hampshire?
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about ancillary probate in New Hampshire, contact our estate planning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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