Santa Clara County Probate Lawyer: Issues to Consider with an Out-of-State Probate

It’s become more and more common now to see clients come in with probate cases that need to be dealt with in multiple states. Many seniors today are “snow birds,” meaning they spend their winters in states with warmer climates while keeping their actual residency in the state they’ve spent most of their lives in. These seniors often own property in the state where they spend their winters, whether it’s real property like a vacation home or timeshare, or even tangible property like a car, boat, or financial account.

When the senior passes away, a situation is created where an out-of-state or ancillary probate proceeding must take place to administer the out-of-state property. Whatever the reason, clients dealing with an out-of-state probate often need help since they are dealing with two or more sets of probate rules and regulations, all of which differ from state to state.

Santa Clara County probate lawyers find that one of the biggest issues involving an out-of-state probate proceeding is cost. Typically, you will need to pay probate court fees for each property held under a different probate court jurisdiction. In addition, you may be faced with extra accounting and legal fees. If possible, you should try to find an attorney who is licensed both in the home state of the deceased and the state where the ancillary probate is taking place. While the fees may be higher than usual due to multiple probate filings, it will still likely be cheaper than hiring more than one attorney to deal with property and assets in each state.

Another serious issue can arise if the decedent did not leave behind a Last Will and Testament. When this happens, the probate court will often order distributions of the estate based on the laws of intestacy. The problem with out-of-state probates is that every state has different laws of intestacy, meaning the heirs in one state may not be the same as the heirs in another. This is a very tricky situation and one where Santa Clara probate attorneys urge their clients to proceed with caution as it may cause additional stress for already grieving family members.

Are there ways to avoid an out-of- state probate proceeding? Yes, but it all depends on the state where the additional property is held since, as noted before, every state has different laws concerning probate. Some of the techniques Santa Clara County probate lawyers use to get around an out-of-state probate often involve placing the property into a revocable living trust, owning the property jointly with someone else, or drafting a type of deed where the property is transferred upon death.

However, Santa Clara County probate lawyers caution that this type of planning must be done BEFORE death, and attorneys must be consulted to make sure these techniques will actually work in the state where the property is held.

If you are currently dealing with the complexities of an out-of-state probate and need assistance, or you would like to plan ahead to avoid the possibility of an ancillary probate for your loved ones, please contact us at (650) 422-3313 or gary@braininlaw.com to set up a consultation.

March 17th, 2016 Posted to Probate | Comments (1)