One of the most important steps in estate administration is inventory all of the assets within the estate. This is important because the location, value, and nature of an asset can require the executor to initiate an ancillary probate in addition to the primary probate. Today we discuss the concept and rationale behind ancillary administration.
In California, ancillary administration may be required in either of two cases: (a) when a probate is opened in California, but the decedent has left property in another jurisdiction (state or country); or (b) when a probate is opened in another jurisdiction, but the out-of-state decedent has left property in California. In the first case, the ancillary administration is in another state, i.e. ancillary to the California probate. In the second case, the ancillary administration is in California, i.e. ancillary to the other state’s probate. (Smith v. Cimmet (2011) 199 Cal.App.4th 1381, 1391.)
The rationale behind ancillary administration is that many states, including California, have jurisdiction to subject local assets to their own probate administration in order to protect local creditors. (Conservatorship of Hum (2006) 139 Cal.App.4th 393.) Indeed, an ancillary probate is an independent estate administration. Accordingly, the ancillary probate state has separate and distinct jurisdiction to retain local assets within its borders until debts due to local creditors and claimants are satisfied. In other words, the ancillary probate state may make independent jurisdictional determinations regarding decedent’s residence and right to local assets. (See Richards v. Blaisdell (1909) 12 Cal.App. 101, 110.) However, conflict of laws rules may require the ancillary jurisdiction to defer to the law of the decedent’s domicile on questions of interpretation and validity of the will, and intestate succession and distribution.
Obviously, ancillary administration necessarily complicates a decedent’s estate administration and may prolong complete distribution and settlement of the decedent’s affairs. Ancillary administration also raises the cost of estate administration to all concerned because it essentially requires the executor to maintain two probate proceedings. Fortunately, there are certain situations where ancillary can be avoided. There are also pre-mortem alternatives to avoid ancillary administration if a decedent owns out of state property.
Schorr Law can assist you with your ancillary administration related issues in California. For a free consultation please call (310) 954-1877 or email us at firstname.lastname@example.org.