Orange County Ancillary Probate Lawyer
When someone dies owning property in their individual name there is a probate legal process through which their estate must go in order for their property to be passed on to their heirs. Probate is almost always undertaken first in the home state of domicile. The probate laws of the state in which the decedent was a permanent resident determine who will get the decedent's personal property (wherever it was located) and the decedent's real property located within the state. This is why probate is almost always filed in the decedent's home state.
There will be probate in each state where there is real property, in addition to the home state. Each state has its own method for distributing the decedent's real property. Even if there is a Will, the Will is first admitted to probate in the home state, then it must be submitted to probate in each state in which the decedent owned real property. The extra probate procedure is called "ancillary probate."Why Does There Have to be an Ancillary Probate?
Again, real property is governed by the laws of the state where it’s located, regardless of where the owner lives. For non-California residents who have real property in Orange County, California, an ancillary probate must occur. In California, ancillary administration may be required in either of two cases:
When a probate is opened in California, but the decedent has left property in another jurisdiction (state or country); or
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 brought in the other state, i.e. ancillary to the California probate. In the second case, the ancillary administration is brought in California, i.e. ancillary to the other state’s probate.
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. 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. 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.Who can Initiate an Ancillary Administration Proceeding in Orange County, California?
Any interested person, or a sister state or foreign nation personal representative, may commence an ancillary administration proceeding by a petition to the Orange County probate court for either or both of the following:
- Probate of the non-domiciliary decedent's will.
- Appointment of a local personal representative.
However, in Orange County, California, if the decedent died while domiciled in a sister state, a personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates a different person to be the personal representative in California. The sister state personal representative may nominate another person as personal representative and the nominee has the same priority as the sister state personal representative.Conclusion
If you wish to gain more information on Orange County, California probate or if you need the general assistance of a probate lawyer, please contact me for a free consultation. I will spend time with you to answer your questions. You can reach me by phone at (949) 243-0406, by email at email@example.com or through my online contact form.