Stay Away From Ancillary Probate: NY Estate Laws
People imagine a probate case as a tedious (yes), long winded (it can be!) and laborious process (indeed). When individuals approach the issue of estate planning they always ask how to avoid probate court because the work involved is, as mentioned, tedious and laborious. There are a few ways to avoid having your estate being administered at probate court. But, there are also a few things you can do to prepare your estate.
Having a last will and testament is very important even if you do not have many assets. Oh, and I mean having a will set-up by a NY State BAR authorized elder estate lawyer and never doing it yourself through Legal Zoom. It will make matters easier to handle for your heirs. Many individuals have assets in more than one state or country. When this is the case, having a last will and testament is critically important. When you have assets in different states or countries, your heirs or beneficiaries will have to open what is called an ancillary probate matter to access or transfer said assets. This applies, for example, to a New York resident, with property in the state, who retired to another state and also owned property there. Another example is when a foreign national leaves property in the State of New York. For either situation, a proceeding will have to start in the last domicile state or country of the person. Then, another proceeding will have to be commenced in New York as well.
In New York, you will need an ancillary proceeding when the non-domiciliary person owns real or personal property which needs to be administered under New York State law and there has been probate in the foreign (domiciliary) jurisdiction. When a person dies with a will, the proceeding is called an ancillary probate proceeding and when they died without a will, it is called an ancillary administration proceeding. The action is brought in the Surrogate’s Court in New York.
There are ways to avoid the lengthy probate process,even if you have a complicated estate. For example, you can add a beneficiary to all of your bank accounts so that it is payable upon death to that person. This includes having a beneficiary listed in your retirement account, your health savings account, etc.
When you own real estate you can change the way in which you are holding title for your property. For example, you can hold title in New York as joint tenants with rights of survivorship. Upon the death of one party, the property passes to the surviving joint tenant. This allows you to avoid probate. But, keep in mind that some jurisdictions might require you to go to probate court to open a small estate for the purposes of the actual transfer. They also have to communicate with the state’s taxing authority in case there are any estate tax liens in the property.
You can also have property held in a trust which survives the creator (settler) of the trust. You can also have the property held in a Limited Liability Company, Corporation or other legal entity. You should consult with an attorney that will be able to guide you in the estate planning process. Making a plan to administer your assets and liabilities now will make this process easier for your heirs and will guarantee that your wishes and instructions are followed and honored.