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What ancillary probate means for an estate case

On Behalf of | Oct 18, 2022 | Probate And Estate Administration

Texas residents who pass away intestate often leave serious legal issues behind for their families. Many times they also have outstanding debt or own property in another state, which can further complicate matters. This situation means that there must be an additional ancillary probate case opened in the other states as well as in Texas. This can have a significant impact on all exposed personal assets of the decedent unless there is some other legal protection tool in place.

Disadvantages of ancillary probate

There are two primary complications when an ancillary probate case is opened in addition to a domiciliary case. Domiciliary probate cases are the central case filed in the state of residence for the decedent. The first issue will be that inheritance laws in the state of residence may not apply in the ancillary probate case. State laws regarding inheritance and property disposition following probate are not always consistent. The state where the property or other assets are registered will have jurisdiction, including financial attachment and taxation claims in addition to inheritance laws.

How to avoid ancillary probate

This problem can be avoided when the owner understands that it could leave the property or assets in jeopardy of being claimed by a third party during probate. Aside from the early transfer of the property to a designated inheritor, any property can be placed in a living trust or designated in a will as a protection tool. Placing the property in trust means that it will technically be owned by the trustee and is not part of the decedent’s estate. This allows it to bypass the probate process altogether.

Probate avoidance is typically the primary goal when Texas residents craft an estate plan. Probate laws always create a problem when assets are exposed following death and there is outstanding debt or tax obligations. Additionally, a last will and testament can be used to assign any property to an inheritor. Another tool for asset protection is placing the property in co-ownership, such as a co-owned bank account. These assets are then subject to state law in the state of residence.