What is ancillary probate in California?

When a resident of another state passes away while owning real property in California, a secondary or 'extra' probate filing called 'Ancillary Probate', will be necessary to deal with the property assets located in California.

The primary probate proceedings will always take place in the decedent's state of residence. Non-real estate personal property, such as a car, boat, or plane, may continue to be probated in the decedent's state of residence at the time of death.

The property must be probated whether the real property was held in the decedent's name only or as a tenant in common where the deceased and another person owned an agreed percentage of an asset. This is required for the legal transfer of real estate to an heir or other beneficiaries of the decedent's Will.

An example of such a filing would be after the death of a widow, who spent winters in Palm Springs for several years with her husband after their retirement. At the time of her death, the woman resided with family in Chicago but continued to own the California real estate in the form of a condo. Determining the heir or beneficiary that the asset (condo) would be transferred to requires a probate filing in the state where the real property is located, which in this case is California.

The laws of the state where the decedent resided at the time of his/her passing have no bearing on the final distribution of property located in other states.

Are there different types of Ancillary Probate?

There are two most common types of ancillary probate in California:

California domiciliary: This form of the ancillary probate proceeding occurs when a California resident dies while owning real estate in another state. The state where the real property is located is where the filing must be made. Situations commonly found during California ancillary filings include the death of a California resident who owned vacation property in another state, or who had a time-share type rental property in another state, as well as California decedents that had mineral rights property in states such as Texas or Oklahoma.

Foreign domiciliary: When a person dies while a resident of another state or foreign country while owning property located in California, the ancillary probate process must be initiated in California. This is also known as a non-domiciliary filing. According to California probate code PC 12501, ancillary administration is defined as “proceedings in this state for administration of the estate of a non-domiciliary decedent.” The decedent, according to California probate code PC 12505, also called the non-domiciliary resident, died while "domiciled in a sister state or foreign nation."

How does ancillary probate work?

Much like a primary estate filing, the ancillary probate process (also known as secondary or extra probate) entails identifying what property and assets the decedent owned in another state(s) at the time of death, plus determining the value of each of these items.

As part of ancillary proceedings, the estate's ancillary administration will be required to pay off any taxes or remaining debts that the decedent owed at the time of his/her passing.

The settlement of these taxes and debts paves the way during the probate process for any property remaining in the estate to be distributed, according to the deceased's Will, to heirs and other beneficiaries.

In California, if attorneys are hired to assist with probate filings and proceedings, the State has regulated the maximum fees that can be charged for estates estimated up to $10 million.

Attorney fees are to be based on the value of the decedent's estate, utilizing per-determined percentages. The fees are four percent for the fist $100k of estate value, three percent for the next $100k, two percent for the next $800k, and finally, one percent for next $9 million.

Alternatively, we've create a probate fee calculator - to help you estimate an attorney fees in California.

When is ancillary probate actually needed in California?

If a non-domiciliary decedent passes away in a sister state but had real property physically located in California valued above $184,500 for deaths after April 1, 2022 or $166,250 for deaths before that date, ancillary probate will be necessary.

This dollar amount is California's small estate baseline. Any personal estate that exceeds this threshold must be probated according to California probate administration regulations.

For example, consider someone who lives in Dallas and owns a second home on the California side of Lake Tahoe. The house has long been used for summer escapes from the Texas heat and winter skiing getaways. Should the owner die, probate requirements must be followed to handle the disposition of this real estate in California. The courts in Texas, which is considered the primary probate state, cannot issue orders about real estate located outside of its own borders.

Can anyone serve as an ancillary administrator?

Unless the decedent's will specifies a different person to be his/her personal representative in California, the sister state personal representative appointed in the state of residence of the deceased will have priority over any other persons to be considered as the ancillary administrator.

The sister state personal representative who is handling the estate administration in the home state may nominate someone else to be the administrator/personal representative for the ancillary probate proceeding. After approval by the probate court, this person will have identical duties in California, as the administrator in the sister state.

The ancillary administrator opens the estate's administration in California, manages inventory and appraisal of assets, credit claims, estate management, payment of taxes and debts, distribution of assets, as well as the closing of the estate administration for the ancillary state.

Need help probating out-of-state assets in California?

If you need help probating out-of-state assets in California, our team of estate professionals can assist you. We have the experience and knowledge to help you through every step of this process, ensuring that it is as smooth and stress-free as possible. Book a free consultation with us for more information or to get started on your ancillary probate case.