Burlingame Ancillary Probate Attorney

What Is Ancillary Probate and When Is It Necessary?

Probate is the legal proceeding in which a deceased person’s property or assets are disposed of or distributed to beneficiaries. Meanwhile, ancillary probate is a legal term that refers to a secondary probate. This “secondary probate” refers to probate proceedings that occur when a non-resident, or someone who lives outside of California, dies while owning property within California. A Burlingame ancillary probate attorney is necessary to handle the property a deceased person owned in California. Under probate law, the probate process must occur in the state in which someone was living or resided at the time of their death. However, the out-of-state probate court cannot issue any order concerning property that was owned by the deceased in California, such as California real property. Thus, a secondary, or ancillary, probate will be necessary in California to handle the administration of this property. Ancillary probate proceedings allow a court to dispose of the California property owned by the non-resident, whether by distributing the property among the deceased’s beneficiaries, or by ordering the sale of the property to allow the proceeds to be distributed.

For example, if Tommy was living in Texas at the time of his death, and was a resident of that state, his estate would begin the primary probate process in Texas to dispose of his property and assets in Texas. However, if Tommy also owned real property in California, this Texas probate proceeding will not be able to handle the California property. Thus, Tommy’s estate will have to begin ancillary probate proceedings in California to dispose of this California property, according to the terms of Tommy’s will. 

How Much Can It Cost?

Fortunately, it is often easier to calculate the potential cost of probate and ancillary probate attorneys in California than in many other states. Under California law, the maximum statutory fees which lawyers may charge for probate in California are set by California Probate Code § 10810. This section establishes the level of attorney’s fees based on the value of the deceased’s estate, using the following scale:

• 4 percent on the first $100,000;
• 3 percent on the next $100,000;
• 2 percent on the next $800,000;
• 1 percent on the next $9,000,000;
• ½ percent on the next $15,000,000; and
• A reasonable amount set by the court for all amounts above $25,000,000

In determining the value of the estate, a probate referee will appraise  all the ancillary probate assets. Importantly, debts, such as a mortgage on a house, are not included in determining the value of the estate for purposes of calculating your ancillary probate attorney’s fees.

How Does Ancillary Probate Work?

“Primary” Probate

In many ways, ancillary, or “secondary,” probate works similarly to “primary” probate.  The probate process typically involves an identification of all of the deceased individual’s property and assets as well as a determination of the value of any property or assets owned by the deceased at the time of death. The administrator of the deceased’s estate then generally pays off any remaining debts or taxes that may have been owed by the deceased. After all debts or taxes are settled, any remaining property is then generally distributed to the deceased’s heirs or beneficiaries according to the will. 

Ancillary Probate

However, if any remaining property owned by the deceased is in a different state, then ancillary probate will be required. If an individual living in another state dies while owning property in California, California’s ancillary probate process would be necessary following the primary probate process in the deceased’s home state. California law establishes this ancillary probate process within California Probate Code Sections 12500 – 12591. Probate Code § 12501 defines ancillary probate as “proceedings in this state for administration of the estate of a non-domiciliary decedent,” while Probate Code § 12505 defines a “non-domiciliary decedent” as someone who dies while “domiciled in a sister state or foreign nation.” Meanwhile, the specific rules regarding how estates of non-residents will be treated are found within Probate Code Sections 12500 – 12591. The only exception to the requirement for ancillary probate to distribute the property of a non-resident is found within Probate Code Sections 12570-12573. These sections allow for the distribution of personal property, as opposed to real property, of a small estate as long as specific steps are satisfied.