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  • John C. Whitbeck, Jr.

    Partner

    John C. Whitbeck, Jr. practices in the following areas of law: Family Law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Mediation, Arbitration, Relocation Cases, Domestic Violence, Criminal Law, DUI/DWI, Reckless Driving, All Felonies, All Misdemeanors, Juvenile Crimes, Mental Health Law, Civil and Business Litigation, Construction Litigation, Education Law, Election Law, Debt Collection, Consumer and Lemon Law.

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  • Ruth M. McElroy

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    Ruth M. McElroy practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Pre and Post Marital Agreements, Domestic Violence, Reckless Driving, DUI/DWI, Juvenile Crimes, Felony and Misdemeanor Crimes, Traffic Offenses, Debt Collection, Civil and Business Litigation. She serves the Virginia Court system as a Guardian ad litem.

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  • Jennifer D. Cisneros

    Partner

    Jennifer D. Cisneros practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Domestic Violence, Juvenile Crimes, Reckless Driving, DUI/DWI, Estate Planning, Wills and Probate, Trusts, Civil and Business Litigation and Debt Collection.

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What is Ancillary Probate?

Probate2

Probate matters can be complicated enough on their own, but there is one type of probate that can be an extremely complicated matter. This case is what’s called an ancillary probate.

Ancillary Probate

Ancillary probate is required when estate assets are held in more than one state. Basically, it means the decedent owned real estate and/or tangible personal property in different states. Maybe you own another residence or vacation home in a separate state. For example, you maintain a primary home in Virginia, a vacation home in Maine, and a vacation ownership in the Caribbean. Or, maybe you have a boat that is located in Virginia, but it’s titled and registered out of state, like in Florida. There are some estate assets you may not even consider that can cause the need for an ancillary probate. Even seemingly minor things like mineral or gas rights that may be attached to real estate in another state can cause the need for an ancillary probate.

Why Ancillary Probate is Difficult

Unfortunately, this scenario can present multiple challenges, especially for the personal representative, or estate executor. Added fees comprise one of the biggest drawbacks to having to launch an ancillary probate proceeding. Typical fees can include filing fees, accounting fees, and attorney’s fees, and now you have to look at fees for probates in multiple states. Most attorneys are not licensed to practice law in a multitude of states, so it may mean you need a probate attorney in Virginia to handle the primary probate, and a secondary probate attorney in Florida, for example, to handle the ancillary probate assets.

An added challenge is when the deceased died without a valid will, which means they died “intestate”. Specific laws will then determine how the deceased’s property is to be divided, and these can differ between all the states and the District of Columbia. This means the rights of heirs in the primary state may not apply if the property is in a different state, because that state interprets rightful heir laws differently.

Given the challenges associated with ancillary probate proceedings, it is pretty typical that beneficiaries will receive their inheritance much later than with a normal probate.

How to Avoid Ancillary Probate

The easiest way to avoid an ancillary probate is to transfer all out-of-state property prior to death. Title like joint tenancy with right of survivorship is one way to avoid this issue, while a revocable living trust is another option. If the state where the other property is located allows a transfer-on-death deed, you can look into that route to avoid ancillary probate as well. Other techniques may help reduce a full-blown proceeding, but that is where it becomes even more important to have a competent Virginia estate planning attorney handling your probate.

Contacting a Virginia Estate Planning Attorney

Unfortunately, there is no way around ancillary probate without careful estate planning on your part. If you have assets, especially ones in multiple states, it’s crucial to meet with a competent Virginia estate planning attorney. Whitbeck, Cisneros, McElroy PC is a full-service family law and estate planning firm in Leesburg, Virginia. We can assist with estate planning services, standard and ancillary probates, and all other family law matters. Contact us today to schedule an appointment.

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