How Probate Works When Someone Owns Property in Multiple States
Do you or a loved one own property in more than one state? It might seem like a sign of financial success, but it can also make probate more complex than many people expect. When someone passes away owning real estate in multiple states, their estate may need to go through more than one probate process.
Probate is the legal process through which a deceased person’s assets are distributed and debts are resolved. Typically, probate takes place in the state where the person lived. However, when real estate is located in another state, that property is usually subject to a separate process known as ancillary probate.
This means your family could be dealing with courts in multiple states at the same time, each with its own rules and procedures.
What Is Ancillary Probate?
Ancillary probate is a secondary probate proceeding that occurs in a state where the deceased owned property but did not reside. For example, if someone lived in Georgia but owned a vacation home in Florida, the primary probate would occur in Georgia, while a second probate case would likely be required in Florida.
Each state has authority over real estate located within its borders. As a result, the out-of-state property cannot simply be transferred through the primary probate case alone. This additional step can lead to:
- Increased legal costs
- Longer timelines for estate administration
- Additional court filings and procedural requirements
- Greater potential for delays or disputes
Understanding this process ahead of time can help families avoid unnecessary stress during an already difficult period.
Are There Ways to Avoid Multiple Probate Cases?
You might be wondering if it is possible to simplify things. In many cases, the answer is yes. With proper planning, it may be possible to avoid ancillary probate altogether.
One common strategy is placing out-of-state property into a revocable living trust. Because the trust owns the property, it does not need to go through probate in each state. Instead, the property can be managed and distributed according to the terms of the trust.
Another option may include joint ownership arrangements or using transfer-on-death deeds, depending on the state where the property is located. However, these approaches must be carefully evaluated to ensure they align with your overall estate planning goals.
What if you own real estate in different counties?
Under Georgia law, when a decedent was domiciled in one Georgia county but owned real property in another Georgia county, a separate ancillary probate proceeding is generally not required. The probate court of the county of the decedent’s domicile has jurisdiction over the estate administration. O.C.G.A. § 53-5-1. However, to properly transfer or establish title to real property located in another county, it may be necessary to record certified copies of probate documents, such as Letters Testamentary, Letters of Administration, Assents to Devise, Executor’s Deeds, Administrator’s Deeds, or other court orders, in the real property records of the county where the property is located. This recording process serves to provide notice in the chain of title and facilitate future transfers of the property, but it does not constitute a separate probate proceeding. See O.C.G.A. §§ 53-2-40 and 44-2-1.
When real property is located in a county other than the county where the probate proceeding is pending, attorneys and title examiners frequently require the filing of an exemplified (authenticated) copy of the relevant probate records in the county where the real estate is situated. An exemplified copy is a higher level of certification issued by the probate court and serves as official proof of the authenticity of the court’s records and the fiduciary’s authority. Recording exemplified copies in the real estate records helps establish a clear chain of title, provides notice to third parties, and may be required by title companies, lenders, or closing attorneys before the property can be sold, refinanced, or otherwise transferred. Although the recording of exemplified probate documents in the county where the real estate is located is sometimes informally referred to as an “ancillary filing,” it is not a separate probate proceeding and does not create independent probate jurisdiction in that county.
Contact Us Today for Help
Owning property in multiple states can create unexpected challenges for your loved ones if you do not have a plan in place. At Bowman Law Firm, we work with individuals and families to develop strategies that simplify the probate process and protect what matters most. Our Norcross estate planning attorneys are committed to guiding you through every step of the process. Reach out to us today for help.
