Ancillary Probate

Have Real Property Located Outside Commonwealth?

It may not be too late to create a revocable trust for the decedent and title all of the out-of-state assets into the trust. The decedent’s domicile determines the place of the administration of the estate.

Normally, all the assets of the decedent except for real estate properties located in other states will be included in the place of administration. The probate procedure for assets located in
another state is called ancillary estate. 

However, certain states reject this principle. i.e., state of Wyoming. When there are assets in Wyoming, the executor will have to start a complete new probate proceeding for any asset in that state including bank accounts. Therefore, the executor should first consult with a local attorney or the clerk of court in the foreign jurisdiction to determine precisely what that state requires.
In addition, the executor should consult with local counsel on the estate and inheritance tax.

For instance, the State of Maryland has a 10% inheritance tax from which only close family member beneficiaries are exempt. See Virginia Code Section 8.01-389The executor will need a “triple sealed copy” of the probate documents which are: 

(1) an authenticated a copy of the Will, 
(2) a certificate of probate of the Will, and 
(3) letters of qualification. 

The clerk of the court of the other jurisdiction will presume that in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personally in the state of the testator’s domicile. Certain states request a certificate of conformity that the Will had an executed form satisfying the requirements of a valid Will in the ancillary state. This is actually what the Commonwealth of Virginia requires for foreign Will.