Ancillary Probate in Pennsylvania
Going through the probate process can be complex, time-consuming, and stressful — especially when you discover that your loved one owned real property in another state. Ancillary probate proceedings in Pennsylvania may be needed in the event a nonresident passes away while having title to real estate in the Commonwealth. Alternatively, ancillary probate may also be necessary if a Pennsylvania resident held property in another jurisdiction. Although the legal process for ancillary probate is similar to regular probate proceedings, it’s essential to be aware of the specific nuances involved.
What is Ancillary Probate?
Ancillary probate is a subsequent probate proceeding that is necessary when a decedent owned property in a state other than that in which their estate is being administered. For instance, two (or sometimes more) probate proceedings may be required if the decedent resided in one jurisdiction but left real estate solely in their name in another. This is because real estate is governed by the laws of the jurisdiction in which it is located and cannot go through another state’s probate process.
What is the Process for Opening an Ancillary Probate in Pennsylvania?
An ancillary probate in Pennsylvania is only permitted when an estate has first been opened in the decedent’s home state. Absent a domiciliary probate proceeding, a regular probate can be opened to distribute the non-resident’s property. Although Pennsylvania law does not specify a technical name for ancillary probate, there are two statutory methods for carrying out ancillary proceedings if there is a valid will — these are outlined in Pennsylvania Statutes Title 20 Pa.C.S.A. Decedents, Estates and Fiduciaries §§ 3136 and 4101. Only § 4101 applies if there is no will in place.
Under § 3136, the decedent’s personal representative in the original jurisdiction must file an authenticated copy of the will proved outside Pennsylvania with the Register of Wills in the county where the property is located. If the original instrument is not submitted, the will must be authenticated in the Commonwealth by two witnesses. Alternatively, § 4101 allows the personal representative from another state to commence ancillary probate proceedings by filing the following with the Register of Wills:
- An exemplified copy of the personal representative’s appointment in the foreign jurisdiction
- An exemplified copy of the will (or other instrument if there is no will)
- An affidavit stating the estate is not indebted to any person in the Commonwealth and the foreign fiduciary will not exercise any power they would not be permitted to exercise in the jurisdiction of their appointment
- An exemplified copy of the foreign fiduciary’s official bond
Importantly, a foreign fiduciary may not exercise their powers in the Commonwealth until one month has passed from the date of the decedent’s passing.
Ancillary probate must be filed for in the county where the property was located — in cases where property was owned in multiple counties, venue is proper in any county where property was located. It’s important to understand that if property was owned in more than one county, opening ancillary probate proceedings under § 4101 can be much more cumbersome since the same steps must be followed for each county. However, if the property owner passed away without a will, the procedure set forth in § 4101 is the only option.
How Can Ancillary Probate Be Avoided?
Like regular probate, there are a few ways that ancillary probate can be avoided and it’s important to consider all possible strategies when planning your estate. One way probate can be avoided is by transferring all property owned out-of-state before death. Ancillary probate proceedings can also be circumvented by changing the title of real property to a joint tenancy with the right of survivorship. This would allow the surviving owner to acquire the decedent’s share so that there would be nothing left to distribute at the time of their death.
Using a revocable living trust is another way in which ancillary probate can be avoided. For example, by titling real estate or vacation property in Pennsylvania to the name of the trust, a second probate proceeding would not be required. But even if you place your property in a revocable trust, it will still be subject to the Commonwealth’s inheritance tax.
Contact an Experienced Pennsylvania Ancillary Probate Attorney
The Pennsylvania ancillary probate process can be complicated. It’s important to have a knowledgeable ancillary probate attorney by your side to guide you every step of the way. At Berman & Associates, we work with out-of-state personal representatives, beneficiaries, guardians, heirs, and other parties in connection with their rights and obligations in the Commonwealth. Contact us today to schedule a consultation at our Media office.