Today on the Weidner Law blog we are talking about ancillary probate. We’ll be covering what ancillary probate is as well as when it is used.
Ancillary Probate: What is Ancillary Probate and When Is It Used?
We have spent quite a lot of time talking about probate here on the Weidner Law blog, but we haven’t spent much time talking about the different types of probate.
What Are the Different Types of Probate?
Generally speaking, there are two different types of probate. There is formal probate and informal probate.
Supervised Formal Probate
This is where someone passes away and a petition for probate is filed with the probate court. Once the petition is filed, a hearing is scheduled with the probate court. This hearing can be a month after filing or even longer!
Once the hearing takes place, the court oversees the processing of the estate of the deceased and the formal distribution of assets according to the will of the deceased by the executor of the estate.
There are some other instances where formal probate is necessary because the court is needed to oversee the process of estate distribution. For example:
- Formal probate also takes place when the deceased person left a will, but the will cannot be found.
- Formal probate also takes place if there is a will, but that will is contested.
- Formal probate also takes place if there are two wills in question.
If someone dies intestate – without a will – formal probate is carried out and the court follows state law as to the distribution of assets among beneficiaries.
In supervised formal probate proceedings, all distribution of property must be overseen and approved by the court.
Unsupervised Formal Probate
Unsupervised formal probate is similar to the supervised formal probate process, however, the court generally only steps in when there is a disagreement among heirs or a problem that needs to be resolved. Such problems may include:
- Creditors disputing how much is owed to them by the deceased.
- Ambiguous wording in the last will and testament.
- Beneficiaries arguing over the distribution of assets.
Informal probate is another probate process, but unlike formal probate, this process is carried out administratively and without intervention from the court.
Informal probate is the “probate” that most people refer to when they are talking about probate court and probate estates.
For an estate to go through the informal probate process, an application must be filed with the probate court requesting an informal probate procedure.
When informal probate takes place, the probate court appoints an executor of the estate (this may be someone who has already been named in the will of the deceased.) The executor then distributes the estate assets among the beneficiaries of the estate without needing the approval of the court.
Summary administration is a form of probate that takes place when the estate is free from creditors claims and is not valued at any more than $75,000, and if all debts are paid, or the creditors that are owed money from the estate do not object.
In summary administration, the beneficiaries of the estate can be held liable for claims against the estate for two years following the death of the estate owner.
Summary administration may also be used if the deceased has been deceased for more than two years and there has been no prior administration process.
Disposition Without Administration
Disposition without administration is a form of informal probate in Florida. This process is only available if the estate of the deceased is only made up of property that is exempt from the claims of creditors by law and non-exempt personal property whose does not exceed the total of the cost of preferred funeral expenses; and the amount of all necessary medical and hospital expenses incurred in the last 60 days of the deceased persons final illness, if any.
Then What is Ancillary Probate?
When probate takes place it is usually a domiciliary probate process. That means that the probate process takes place in the county where the deceased person resided. An ancillary probate process is a probate process that takes place in addition to the domiciliary probate process. The ancillary probate process takes place in another state to the state where the deceased passed away.
When is Ancillary Probate Used?
Ancillary probate is used when the deceased owned property in two different states at the time of their death. For example, they lived most of the year in Florida, but had a vacation home in the North Carolina mountains. The domiciliary probate process takes place in Florida, but because property was also owned in North Carolina, an ancillary probate process is also needed in North Carolina.
Ancillary probate is a necessary procedure when someone owns property in multiple states, and yes, if someone owns property in four states, then multiple ancillary probate processes must take place. Think of this as the tying up of loose ends.
Can Ancillary Probate Be Avoided?
There are some instances where ancillary probate can be avoided. One example is when the property in another state is included in a funded revocable living trust set up by the deceased.
Ancillary probate can also be avoided if the property in another state is titled as jointly owned with a beneficiary with rights of survivorship.
Are You In Need of a Probate Attorney in or Around St Pete, Florida?
If you are in need of an attorney to help you through the probate process, Weidner Law can help. Pick up the phone today to give us a call at 727-954-8752 and make an appointment to speak with attorney Weidner!