“Ancillary Probate” refers to the process of passing ownership in property (usually real estate, but possibly other things like a boat or mineral rights) owned in a state other than where the decedent resided. If, for example, your father passed away while residing in New York but also owned a family Maine summer camp, the primary probate proceedings would be in New York and there would also need to be an ancillary probate in Maine to distribute or sell the property.
The good news is that in Maine, it’s generally not a difficult process.
When a Personal Representative is appointed to an estate, it is done through the court system in the state where the decedent resided. In the example above, the Personal Representative (also called an Executor or PR) would be appointed in New York; the problem is that the PR would not have the authority to distribute or sell real estate in Maine because that is governed by Maine law, not New York law. Thus, the PR would need to be additionally recognized in Maine to have the authority to sell or distribute the property.
Maine has made their process quite user-friendly. The PR can file paperwork from their original probate appointment with the Probate Court in the Maine County where the property is located and be granted authority to sell or distribute the property. Typically, the PR finds an attorney in Maine who can help guide them through the process. The Maine Revised Statues (Title 18-C, Article 4) provide the framework for the procedures involved in ancillary probate.
Certainly, there is some additional expense with having to get a PR appointed in two jurisdictions and potentially hiring two different attorneys to assist. As a result, you might be considering whether it is possible to avoid ancillary probate? Fortunately, there are ways to potentially avoid the need for ancillary probate proceedings. If the property was titled jointly or owned by an entity like an LLC or a trust, that would effectively avoid the need for ancillary probate. While Maine’s ancillary probate proceedings are fairly straightforward, there are some jurisdictions that are much more complicated. Therefore, we encourage you to consult with an estate planning attorney if you own real property in multiple states.
Rev 4/21
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