Understanding Ancillary Probate Law In New York State

Ancillary probate is a type of secondary probate that is conducted for any estate assets and property that are titled and registered in a state other than the one in which the decedent resided. Each state has its own set of probate laws, meaning that if a decedent owns real estate in two different states, they will need to probate their Last Will and Testament in their home state and conduct an additional ancillary probate in the second state. In the state of New York, an ancillary probate proceeding is required when a person dies out of state but leaves property in New York in their name alone.

Ancillary probate for testate estates

Ancillary probate is a type of secondary probate that is conducted for any estate assets and property that are titled and registered in a state other than the one in which the decedent resided. Each state has its own set of probate laws and ancillary probate laws and proceedings.

If an individual owns real estate in two different states, or in a state other than the one in which they reside, they will need to probate their Last Will and Testament in their home state and conduct an additional ancillary probate in the second state in which they own real property. It may also be necessary to conduct an ancillary probate proceeding if the decedent owned certain personal property outside of their home state, such as a co-op apartment, car, boat, or airplane. However, in most cases, ancillary probate is reserved for real estate.

Ancillary probate proceedings are commonly necessary in scenarios when a person is living as a "snowbird", where they spend the warm spring and summer months in New York and the cooler fall and winter months in a warmer location such as Florida. If a "snowbird" made Florida their primary residence while maintaining a second home in New York, when they pass away, their Last Will and Testament would need to be probated in Florida. However, the personal representative would also need to seek appointment in New York through an ancillary probate proceeding to gain the authority to deal with the New York residence.

In order to file an ancillary probate proceeding in New York, NY law requires that the estate is actually being administered or the will is being probated in the state where the decedent is domiciled, and that the decedent possessed real (or personal in rare exceptions) property in New York. The personal representative is required to file a petition to be appointed the ancillary representative in New York and must include the exemplified probate records from the decedent's home state.

The personal representative of the estate must be a New York resident. This means that in order to file an ancillary proceeding in New York, you must first appoint a New York resident as your co-representative if you do not live in New York. Together, you would file a petition for an ancillary proceeding with the New York Surrogate's Court. In this petition, you must identify the assets that are located in the state, as well as list the beneficiaries of the decedent.

Non-domiciliary estate administration

There are several reasons why a non-domiciliary's estate might require administration in New York:

• The decedent owned real property (e.g., a house or land) in New York.
• The decedent had tangible personal property (e.g., cars, jewelry) located in New York.
• The decedent held bank accounts or other financial assets with institutions based in New York.

The process of non-domiciliary original estate administration in New York includes the following steps:

• Preparing and Filing the Petition: This involves preparing and filing a petition for Probate with the Surrogate's Court in the county where the decedent's property is located. The petition must include details about the decedent, their assets, and the nominated executor. It is important to note that the decedent's death certificate will list another state or country as their "usual residence." This must be addressed by preparing an affidavit stating that there are no other assets in the state of residence and there is no intention to commence a probate proceeding in that state.
• Jurisdiction Considerations: New York courts will assess their jurisdiction over the estate based on the location of the assets. If the assets are located within New York, the court will typically accept the probate petition. If the asset is a bank account, the petition must be filed in the county where the decedent opened the account.
• Appointment of Executor: Once the petition is approved, the court will issue letters testamentary, officially appointing the executor named in the will. If the nominated executor is not a US citizen or Green Card holder, the court may appoint an administrator.

Once the letters testamentary are issued, the estate proceeds with the regular administration process, including paying debts, collecting assets, paying taxes, and distributing estate assets.

Challenges and considerations of non-domiciliary original estate administration in New York include:

• Multiple Jurisdictions: Executors may need to navigate probate proceedings in multiple states if the decedent had assets in various locations, increasing administrative burdens.
• Tax Implications: Executors must consider both New York state and federal tax implications when handling the estate of a non-domiciliary and may need to consult a tax professional.
• Legal Assistance: Given the complexities involved, engaging a probate attorney with experience in handling non-domiciliary estates can be beneficial to ensure compliance with legal requirements and streamline the process.

Who can serve as an ancillary administrator?

Ancillary probate is a type of secondary probate that is conducted for any estate assets and property that are registered in a state other than the one in which the deceased resided. In the case of New York, if a person passes away in another state but leaves property in New York, the administrator will need to file a petition for ancillary letters of administration with the Surrogate's Court of New York.

The following individuals are granted Letters of Administration, in order of priority:

• The surviving spouse
• Brothers or sisters
• Any other distributee (preference given to the person entitled to the largest share in the estate)

However, certain individuals are disqualified from serving as administrators of an estate in New York:

• Infants (under 18 years of age)
• Incompetents (lacking sufficient understanding; typically mentally incapacitated)
• Non-domiciliary aliens (neither a US citizen nor a US resident), unless they serve with an eligible co-fiduciary
• Persons who do not “possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit to the execution of the office”
• Persons ineligible in the Court’s discretion, for example, a person who cannot read or write in English

In the case of intestate estates, ancillary letters of administration will first be issued to the person appointed in the domicile, and otherwise, to a person entitled to letters of administration.

SCPA Section 1605 provides the order of preference for appointing the ancillary administrator in a New York probate:

• The person named in the will as the executor of New York property
• The person appointed as executor in the domiciliary estate
• The person named in the will as executor if not appointed in the domiciliary estate
• The person with priority under the general rule of appointment for New York domiciliary probate

The powers and duties of an ancillary administrator

Ancillary probate proceedings are required when a person owns property in a state other than the one in which they reside. In the state of New York, the Surrogate's Court has jurisdiction over an ancillary probate if the decedent had property in the state or a cause of action for wrongful death against a New York resident.

The ancillary administrator is required to file a petition to be appointed as the ancillary representative in New York and must include probate records from the decedent's home state. The ancillary administrator must also file an authentic copy of the will, along with any relevant court orders or decrees.

In the case of intestate estates, where the decedent has not left a will, the ancillary letters of administration will first be issued to the person appointed in the domicile, and if not, then to a person entitled to letters of administration under SCPA Section 1001.

It is important to note that an ancillary administrator is not always required in New York. If the only purpose of the ancillary administration is to pass the title, probate of the will may be sufficient. However, if there are beneficiaries who plan to hold real estate long-term, an ancillary administrator may be needed to obtain title insurance for the sale of the property to a third-party purchaser.

Costs of ancillary probate proceedings

Ancillary probate proceedings in New York require additional court filing fees and attorney's fees, and they will lengthen the probate or administration process.

The fees for filing a petition to commence a proceeding for probate of a will are computed based on the gross estate passing by the will as stated in the petition. In the case of an ancillary probate proceeding, the fee is computed only based on the property within New York passing under such a will. If the value of the estate exceeds what was originally stated, an additional probate fee must be paid, which is the difference between the fee based on the subsequent value shown and the initial fee paid. Conversely, if the value of the estate is less than what was originally stated, a refund is issued, which is the difference between the initial fee paid and the fee based on the actual value.

The fees in the surrogate's court of each county in New York State shall be payable in advance and are the property of the county unless otherwise provided by law.

In addition to court fees, there are also attorney's fees to consider. While New York law does not require an estate to hire a probate attorney, there are certain circumstances in which working with an attorney can be helpful. For example, if you need to file for an ancillary probate in a different state or if the will is complex and/or contested.

The costs of ancillary probate proceedings can be avoided through proper estate planning. One option is to place out-of-state real property into a living trust, which would govern the distribution of out-of-state real property without the need to involve an out-of-state court.

Frequently asked questions