How To Avoid Ancillary Probate With Estate Planning

How To Avoid Ancillary Probate With Estate Planning.

If you are a Georgia resident who owns property in another state, your estate may face ancillary probate in the other state after your death, in addition to probate of your estate in Georgia. Ancillary probate incurs additional expenses and requires additional time and effort by your personal representative before your estate can be settled. However, you can work with an experienced estate planning lawyer to create an estate plan that avoids ancillary probate, as well as probate for the rest of your estate.

Probate and Ancillary Probate

Probate is a court-supervised process established by Georgia law, which requires certain estates and assets to go through the process before a decedent’s estate can be distributed to the beneficiaries and heirs. Some estates and assets do not need to complete the process. When required, probate takes time and creates costs and expenses for the estate. Probate also makes the financial details of the estate publicly available.

For a Georgia estate that must complete probate, the process takes place in the county where the deceased person resided. This probate process is referred to as primary or domiciliary probate. If the decedent owned property located in a state other than Georgia — such as a vacation home or investment property — the out-of-state property must also complete the probate process in that state, if required by that state’s laws. The out-of-state probate process is called ancillary probate, because it is in addition to the primary probate. If the deceased person owned property in multiple other states, the property in each state may be required to go through ancillary probate in the state where it is located, which means that multiple ancillary probates may be necessary.

When you own property in a state other than Georgia, the laws of the other state apply to that property. As a result, ancillary probate is governed by the laws of the state where the out-of-state property is located. Typically, like the Georgia probate process, ancillary probate takes time and incurs costs and expenses. In addition, the Georgia personal representative may need to hire a probate lawyer in the state where the property is located to help with the ancillary probate.

An additional legal problem may arise if a Georgia resident dies without a will. In that situation, property in Georgia will be distributed according to the Georgia laws of intestate succession, but out-of-state property will be distributed according to the intestate succession laws of the state where the property is located. As a result, the heir(s) of the out-of-state property may not be the same as Georgia law would provide.

Avoiding Probate and Ancillary Probate

When you create an estate plan with assistance from an experienced Georgia estate planning lawyer, you can structure your estate plan to avoid ancillary probate of your out-of-state property, as well as avoid Georgia probate. The best way to accomplish that goal depends on the nature of your assets and your personal and financial circumstances.

There are several approaches that can be used to avoid probate and ancillary probate for your estate, but all of them must be accomplished during your lifetime. After you die, your beneficiaries or heirs cannot do anything to avoid probate if Georgia law or out-of-state laws require it. The ways to avoid probate include: 1) placing property and assets in a properly established, executed, and funded trust; 2) using a transfer-on-death deed for real estate; 3) owning property as joint tenants with the right of survivorship.

Establishing and Funding a Trust

To avoid probate with a trust, you must establish the trust by executing a properly drafted trust document. Then, you need to fund the trust. A trust can accomplish many other goals in addition to avoiding probate. Your estate planning lawyer identifies all your goals for your estate plan and drafts the trust document to achieve them, then guides you in how to execute the document and fund the trust properly.

Using a Transfer-on-Death Deed

Georgia law changed in July 2024 to allow transfer-on-death (TOD) deeds for real property. You may be able to use a TOD deed for out-of-state property, but only if the law of the state where the property is located recognizes TOD deeds. However, using a TOD deed can have significant drawbacks. There may be more suitable options and tools to avoid probate and accomplish your estate planning goals.

Changing the Property Title to Joint Ownership

Another option for avoiding probate and ancillary probate is to title property as joint tenants with the right of survivorship, so that the joint owner automatically owns the property on your death. This approach only works for some types of property and may lead to substantial negative consequences, including tax issues, in some circumstances. You can avoid making significant mistakes by consulting with a lawyer before making this type of change or any other type of change regarding the title to property.

Importance of Estate Planning

To determine the best approach for avoiding probate and ancillary probate for your estate, you should talk with an experienced estate planning lawyer before you take any steps concerning your assets. Your lawyer will review all the available strategies and options and help you decide on the right estate plan to achieve your goals, based on your unique circumstances. Attempting to avoid probate or ancillary probate without getting help from a knowledgeable attorney is a serious mistake that can have wide-ranging, significant legal ramifications for you and your loved ones.

Talk With an Experienced Georgia Estate Planning Attorney

Our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia focuses on helping clients determine their estate planning goals and using the best approach to address all their concerns relating to their well-being, assets, families, and estates. We serve clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County, and Paulding County. To schedule a consultation, call us at (770) 382-0984 or contact us through our online form.

Categories: Estate Planning