Ancillary probate is a secondary or “extra” probate that occurs when a non-resident of California dies owning property within California.
“Ancillary administration” means proceedings in California for administration of the estate of a nondomiciliary decedent. California Probate Code § 12501.
A “nondomiciliary decedent” means a person who dies domiciled in a sister state or foreign nation. California Probate Code § 12505.
When Is An Ancillary Probate Needed In California?
Ancillary probate is necessary if a non-domiciliary decedent died with assets in California over the small estate threshold of $166,250.
One scenario when an ancillary probate is needed in California is when a non-domiciliary dies owning real property in California. For example, if someone is a resident of New York, and owns a vacation home in Lake Tahoe, an ancillary probate in California would need to be opened to handle the California real property. This is because a sister state can not enter orders concerning real estate in another state. Therefore, a California probate court in an ancillary administration can enter any orders necessary to distribute the California real property.
Who Can Open An Ancillary Probate Administration In California?
Any interested person, or a sister state or foreign nation personal representative, may open an ancillary administration by petitioning the California probate court for probate of the nondomiciliary decedent’s will, or for the appointment of a local personal representative. California Probate Code § 12510.
What County Is An Ancillary Probate Opened In?
A California ancillary probate should be opened in the county where the nondomiciliary decedent died if the decedent owned property in that county, or any county in which the property of the nondomiciliary decedent is located if no property of the decedent is located in the county where the decedent died or if the decedent did not die in California. California Probate Code § 7052.
Ancillary Probate For Will Admitted to Probate in A Sister State Or Foreign Nation
If decedent’s will was already admitted to probate in another state, the California probate court shall admit the will to probate in California, and may not permit a contest or revocation of probate, unless one or more of the following are shown:
(a) The determination in the sister state is not based on a finding that at the time of death the decedent was domiciled in the sister state.
(b) One or more interested parties were not given notice and an opportunity for contest in the proceedings in the sister state.
(c) The determination in the sister state is not final. California Probate Code § 12522.
For a will admitted in a foreign nation, the California court should admit the will to ancillary probate in California, and may not permit a contest or revocation of probate, if it appears from the order admitting the will to probate in the foreign nation, or otherwise appears, that all of the following conditions are satisfied:
(1) The determination in the foreign nation is based on a finding that at the time of death the decedent was domiciled in the foreign nation.
(2) All interested parties were given notice and an opportunity for contest in the proceedings in the foreign nation.
(3) The determination in the foreign nation is final.
However, the California probate court may refuse to admit a will admitted in a foreign nation even if the will complies with all of the conditions set forth above, where the order admitting the will was made under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law. California Probate Code § 12523.
Who Can Serve as Ancillary Administrator in California?
If a decedent dies 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. California Probate Code § 12513.
An administrator of a California ancillary probate has the same duties concerning the administration of a decedent’s primary estate, including but not limited to, opening estate administration, inventory and appraisal, creditor claims, estate management, independent administration, compensation, accounts, payment of debts, distribution, and closing estate administration. California Probate Code § 12530.
Distribution from the California Ancillary Estate
When the ancillary probate estate in California is ready to be distributed, distributions can be made to the sister state personal representative if in the best interest of the estate and interested persons, and upon court approval. California Probate Code §12541.
Real property must be distributed directly to the beneficiaries or heirs. However, if the property is sold, then the proceeds of sale can be distributed to the sister state personal representative.
