Ancillary Probate

Normally probate is done in the state in which the decedent (person who died) resided. However, if the person owned real estate in another state, then there will have to be an ancillary probate in any other state where the person owned real estate.

Real Estate must always be probated in the state in which it exists. Non-real estate assets are probated in the state the person died a resident of. If the probate is uncontested a state probate judge will look at the death certificate to see what residence the person had so the state probate judge will know if he or she has jurisdiction over the person's non-real estate assets.

Example Scenarios:

If, for example, a Wisconsin resident dies, there would be a main probate in Wisconsin for the personal property and Wisconsin real estate. If that person also had, for example, real estate in Nevada, then there would be an ancillary probate in Nevada for the Nevada real estate. However, suppose the Wisconsin decedent owned his Wisconsin home with his wife in joint tenancy and she survived him and all of the financial assets were owned by the couple as joint tenants, and let's suppose the Wisconsin man owned a Nevada vacation home in his name only. Then there would be no need for a Wisconsin probate, but there would have to be a Nevada probate and in this case the Nevada probate would not be called an ancillary probate.

Or suppose the Wisconsin decedent owned his residence in Wisconsin and had vacation homes in Nevada, Florida, and Colorado, and all real estate was in his name only. Then there would be a main probate in Wisconsin and ancillary probates in Nevada, Florida and Colorado.

Ancillary Probate & Timeshares

In Nevada timeshares are real estate. The timeshare might specify that it is 300,000 Wyndham Vacation points annually and the owner might be able to use those points in any state Wyndham has a timeshare, but the timeshare deed will refer to the owner having a super tiny fractional interest in some Nevada resort and that is why the Nevada courts consider Nevada timeshares real estate. Ancillary probate of timeshares is a very common form of ancillary probate as people usually don't own a timeshare where they live. See Timeshare Probate.

Sometimes a person has a trust in their home state and everything is put into their trust except a timeshare or a vacation home or second residence in Nevada. If that happens there is no probate in the person's homestate and the timeshare or vacation home or second residence is then probated in Nevada as a regular probate. No additional documents are needed, except if there is a will that was not filed in the Decedent's home state, the original will must be filed in Nevada.

In fact, one of the most common estate planning mistakes made by people living outside of Nevada who own a Nevada timeshare is that they don't put the timeshare into their trust (if they have a trust) or they don't avoid probate by using an appropriate deed such as putting the timeshare into joint tenancy or using a transfer on death deed under N.R.S. 111.665 et. seq. We do draft and file deeds for out of state estate planners with clients who own Nevada properties or for individuals who want to do their own estate planning. Nevada Deeds

International Probates

Let's say the Decedent was a resident of Canada or France and owned a bank account in an American bank that does not do business in Canada. The American bank may decide to ignore Orders or Letters of Administration or Letters Testamentary from a Canadian or French Court. In such a case, despite the Decedent not being resident in the United States, the probate of the American bank account could be done in the state where the American bank is headquartered. Likewise, if a Nevada resident dies owning a Swiss bank account, the Swiss bank will likely ignore the Nevada probate court and a Swiss lawyer will be necessary.