An ancillary estate proceeding is a secondary proceeding to appoint an estate representative, in a state other than the initial “home state.” The home state is the state where the decedent was domiciled and where the initial probate or administration proceeding was brought.
Consider the example of Fred, who permanently moved from his home in New York to Florida 20 years ago following the death of his beloved wife. At the time of his death, Fred was a domiciliary of Florida.
Although he permanently moved from New York to Florida, Fred continued to own his property in New York as a rental property. He also purchased a home in Florida.
Fred’s will, which was prepared by an attorney in Florida, states that upon his death the executor of his estate (called a Personal Representative in Florida) must sell both his Florida residence and New York rental property and then distribute the proceeds of both sales to his children, equally.
Fred’s Last Will and Testament must initially be probated in Florida and a Personal Representative must be appointed. Thereafter, his Personal Representative must petition for an ancillary probate proceeding in New York and request that he/she be appointed as Ancillary Executor in New York. The Personal Representative in Florida can sell the Florida real property, and the Ancillary Executor in New York can sell the New York real property.
Under New York law, an ancillary proceeding is only appropriate under the following circumstances:
- The estate is actually being administered or probated in the place of the decedent’s domicile AND
- The decedent owned real or personal property in New York. However, it should be noted that subject to exceptions, an ancillary proceeding is usually only necessary when real property is involved.
To bring an ancillary proceeding in New York, the personal representative from the home state must file a petition and obtain jurisdiction over all necessary parties including the New York State Department of Taxation and Finance.
The petition must list all distributees (next of kin), identify New York property, creditors (if any), and, all beneficiaries named in the Last Will and Testament. In addition to filing a petition, the petitioner must also file exemplified copies of the probate or administration records of the proceeding in the home state.
Once jurisdiction is obtained overall necessary parties, the court will issue Ancillary Letters to the estate representative, which will give him/her the authority to act on behalf of the estate with respect to the New York property.
There are also situations where New York is the home state for a decedent and there is real property located in another state that is an estate asset. In this case, the nominated executor of the Last Will and Testament would need to probate the will in New York and seek the appropriate ancillary proceeding in the state where the real property is located.
Although there are situations where ancillary estate proceedings are necessary, the best way to avoid an Ancillary Estate proceeding is to meet with an experienced estate planning attorney to create and implement an estate plan to address these concerns.