What State Probate Law Applies for Properties in Multiple States?
It isn’t unusual for people in South Carolina to own property in other states when they die. Increasingly, South Carolina is a popular destination for retirees from New England and the Midwest, and many of these transplants don’t sell their properties back home when they move. Other people invest in real estate or own vacation homes outside South Carolina. When these people die, they have properties in multiple states.
So, what state probate law applies for properties in multiple states when this happens? The Aiken, SC probate lawyer at Surasky Law Firm explains more in this post. If you need to speak with a lawyer right away, you can contact us today. Or see our checklist on steps to take in probate.
How Probate Works
When someone dies, their estate typically needs to pass through probate. The personal representative named in the will should open the probate in the state where the deceased was domiciled. Essentially, this is the state where the person made their home.
Let’s say someone with a home in Michigan comes down to South Carolina for two months every winter. South Carolina is not their home, even if they end up dying here because they intend to return to Michigan. Accordingly, the personal representative should open probate in Michigan, not South Carolina.
The same principle applies if a South Carolina resident spends part of the year in Arizona or Colorado. Since South Carolina is their home, probate is opened there. We call this the “domiciliary probate.”
What Happens to Out-of-State Property?
A South Carolina probate court has jurisdiction over any property located in our state. However, South Carolina courts lack jurisdiction (power) to dispose of assets in another state. Most commonly, the out-of-state asset is real estate—a piece of land, condo, or house. For that reason, you will need to open an ancillary probate proceeding in the state where the property is located.
What is Ancillary Probate?
Imagine if Jim moved from Delaware to South Carolina when he retired. He had not yet sold his Delaware home when he died in an accident. Because Jim made South Carolina his home, his probate is opened in South Carolina. However, his personal representative will also need to open ancillary probate in Delaware to handle the property located there.
Ancillary probate is necessary to properly transfer ownership of an out-of-state asset to a new owner. We have helped many people who live outside South Carolina open ancillary probate here.
Ancillary probate is not dramatically different from regular probate. Instead, it only deals with whatever property is in that state. Remember, a court’s jurisdiction doesn’t extend farther than the state’s borders in most cases.
After Jim’s death, his personal representative will need to open probate in South Carolina but also ancillary proceedings in Delaware. The ancillary probate will follow the rules in the Delaware probate court.
How to Handle Ancillary Probate
Many people are flummoxed about what to do as a personal representative. Probably the easiest thing is to hire a probate lawyer. We can then coordinate and find an appropriate lawyer in a different state to handle the ancillary proceedings there.
Ancillary probate happens more often than you think. Some states have simplified the process. For example, they might only require that the personal representative file a copy of the will and their letters from the domiciliary state. They do not require a full-fledged probate hearing to determine whether you can serve as a personal representative in their state. This simplified process makes it easier to obtain the necessary powers to dispose of the property.
Things can get complicated when the deceased owns multiple properties in several states. You will most likely need to open ancillary proceedings in all of them. This is one reason to hire an experienced attorney. Our firm can find a lawyer in other states to open the ancillary proceedings—you do not need to fly all over the country to fulfill your responsibilities as a personal representative. The estate should also pay for you to hire one or more probate lawyers.
Avoiding Ancillary Probate
If you are creating an estate plan, you can make things easier on your family if you own property in other states. You have certain options:
Sell the property. You can convert it to cash, which will make things easier to distribute to your family.
Move non-real estate to South Carolina. You can move cars, campers, and jewelry to our state and store them here. You can also transfer cash to a bank located in South Carolina.
Make an inter vivos gift. This is a gift while living. You can sign over the property to your children while you are alive and probably not owe gift taxes on it.
Own the property in joint tenancy with right of survivorship. Your share of the property will automatically transfer to the other joint owner(s) at your death. No probate is needed, so this is an easy way to transfer real estate.
Create a living trust. With a trust, you title the property in the trust’s name. A trust does not go through probate at death, which means your representative can dispense with ancillary proceedings. Instead, the trustee will distribute the property according to the terms of your trust. Our firm can help you create a living trust or some other trust that meets your needs.
These are some of the simplest options. Contact an attorney to discuss whether these or other options work for you. There might be tax advantages to some options over the other, and you deserve advice tailored to your situation.
Need Assistance? We Can Help
People are increasingly on the move, and South Carolina welcomes countless retirees. All this moving can finally catch up with people at death when they own multiple properties all over the country. If you are a personal representative, please reach out to Surasky Law. We can handle the probate in our state and hire an out-of-state attorney to handle the ancillary probate. We are also available if your loved one was domiciled out of state but had property here.
Call us today to schedule a free consultation. Our probate lawyer will meet for a confidential consultation to discuss your legal needs.
