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By: Scott Grossman on October 18th, 2016

When Is Ancillary Probate Needed in California?

Most people outside of probate lawyers have never heard the term “ancillary probate.”

Ancillary probate is a legal term for secondary probate that must occur if a person who lives outside California dies and they owned property within the state of California.

An Example of Ancillary Probate

Let’s say a person who resides in Washington State dies, and he owns a piece of real estate in California.  Probate has to occur in the place where someone lived at the time they died. Due to this, probate would occur for our hypothetical Washington resident in Washington State.

A secondary (ancillary) probate is opened in California to handle the California property.

Here is why. To transfer real property, if the person who died didn’t have the property in a trust, a transfer of the property would require his signature.  That obviously is impossible after a person has died.  Probate is a substitute for obtaining the required signature.  But, a court outside the state of California can’t issue an order concerning California real estate.

So, probate is opened here in California, and a judge can issue an order either for the transfer of the property to the beneficiaries, or ordering the sale of the property with the proceeds of the sale going to the beneficiaries.

Further Clarification

Let’s go back to our Washington State example.  John Smith lives in Washington.  He owns a condo in downtown Seattle and also has a car and bank accounts in Washington.  He also owns a vacation home in Palm Springs.  Primary probate will happen in Washington, and that will dispose of nearly all of John’s estate.  But, the probate in Seattle cannot handle that Palm Springs vacation home.  So, the executor of John’s estate is going to need an attorney down in California to open up probate in Palm Springs to get that order concerning the Palm Springs house.

From there, we simply carry out the terms of John’s will.  If the will says the Palm Springs house goes to a particular beneficiary, or money from the house goes to certain beneficiaries, that is what happens.  Probate goes through its normal process according to the terms of the will. Whoever is supposed to get that California property, gets that California property.

For more information or to schedule a no-cost consultation, please contact The Grossman Law Firm, APC, at (888) 443-6590.