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By: Scott Grossman on April 5th, 2022

What is Ancillary Probate?

Managing probate and someone’s property can be challenging and even more challenging when that property is out of state. Not having access to your out-of-state property and not understanding the litigation process can leave you feeling unsure of your next steps. And that is okay.  Ancillary or Secondary probate can be tricky to navigate.

But it may be a necessary part of the probate process if the person that passed owns property out of state. The procedure entails filing secondary probate. The filing of the ancillary probate is to gain access to the out-of-state property. The property, additionally, must always be probated in the state in which it is located. 

Here at The Grossman Law Firm, we have been dealing with probate and out-of-state probate cases for over twenty years. We pride ourselves in helping our clients receive access to their out-of-state properties, assisting them in any way we can to secure their assets. Notably, many of my clients have said it can be demanding when grieving and dealing with the probate process. And finding out that your primary probate may not cover everything you need. 

In this article and video, you will learn: 

  • What ancillary probate is
  • The difference between your primary probate and ancillary probate 
  • Why do you have to file two probates
  • How to avoid ancillary probate, if you can 


What is the difference between Probate and Ancillary Probate? 

Ancillary probate happens only when a person passes away with property in more than one state. Meaning they pass away in one state but own property in another. To get access to the real estate property in the other state, you need to file secondary probate. The ancillary probate is in addition to filing the primary probate where they reside. The primary probate you file will cover all the property in the state they were living in and all of the assets in the other state, except the real estate property. Secondary probate is a necessary step to obtain access to real estate in another state.  

The laws of the state where the property is located control what happens to that property when the owner dies. So, not the law in the state where the decedent lived at the time of death. 

So, if the person that passed away was living in California, California is where you would file the primary probate. You need to file the ancillary probate in the state where the out-of-state property or properties are located. The secondary probate is done in the state where the decedent owned property, not the state where they passed away. 

How To Avoid It:

Unfortunately, there aren’t many ways you can avoid the ancillary probate proceeding. But three things might help you determine if you can dodge this particular probate litigation process. 

  • The person that passed was not the sole proprietor of the property when they pass
  • If they put the property into a trust before they passed 
  • By getting a transfer-on-death (TOD) deed — (if the property is in a state that permits it) 

So, what is covered in ancillary probate? 

The ancillary probate will also only cover the real estate property in the other state. And all the other belongings, even if they are in the other state, will be covered by the probate. The property is subject to secondary probate after the decedent passes in the state where the property/ properties are owned. 

How do I file in California? 

Filing ancillary probate in California can be tricky, but do not worry. The Grossman Law Firm will be there with you at each step of the litigation process, ensuring that the proceeding is as easy for you as possible. We help you secure your loved ones’ property that is usually distributed among the deceased’s beneficiaries or by ordering the sale of the property to allow the proceeds to be distributed. 

We recognize and empathize with our clients and the distress of dealing with out-of-state properties, filing probate, and any additional ancillary probate needed. So, if you are still having some trouble or have any more questions, or want to talk to someone about your issue, please give us a call or fill out our Get Help Now form

Or, if you would still like some more information, check out our comprehensive overview of California Probate Litigation, available on our website. And if you have additional questions about ancillary and what you should know moving forward, look at our article 7 Factors That Impact the Cost of an Ancillary Probate in San Diego.