How To Deal With Ancillary Probate

Probate is one of the most difficult challenges our clients face. Probate is the legal court process often required after an individual has passed away. Our clients come to us, not only facing the death of a loved one, but also concerned about a confusing and lengthy court process to settle their estate.

How do I handle an ancillary probate?

If your deceased loved one was from a state other than North Dakota, you probably have already opened probate in their home state. Now, your local attorney may be advising that you need to do something called “ancillary probate” in North Dakota in order to handle property the decedent owned within this state. Probate is always challenging; however, probate in more than one state can feel overwhelming. As always, we are here to make the process as simple and straightforward as possible.

What is ancillary probate?

Ancillary probate is a probate proceeding which occurs in a state other than where the original probate case was opened. For example, perhaps your loved one lived in Minnesota but owned mineral rights in North Dakota. The primary probate case would be opened in Minnesota, but the Minnesota court would not have the authority to control what happens with North Dakota minerals. As a result, the Personal Representative from the Minnesota probate case would have to file to open “ancillary probate” in North Dakota to deal with the North Dakota property. This is where our help comes in!

How does ancillary probate differ from the normal probate process?

Put simply, ancillary probate is quicker, easier, and often less expensive. The reason for this is because it does not require all of the same steps of the primary probate. In the primary probate case, there are many requirements often including appointing a proper Personal Representative, identifying heirs, notifying and paying creditors, locating and listing all of the decedent’s assets, and preparing and executing a proper distribution plan. In ancillary probate, all of that work has probably already been done in the primary probate case. In North Dakota, opening ancillary probate typically consists of submitting an application to the Court along with copies of the court documents from the other state. The North Dakota court reviews all of the documentation and then acknowledges that the Personal Representative appointed in the original state has the authority to do what needs to be done for the estate in North Dakota. Once ancillary probate has been opened in North Dakota, the Personal Representative can proceed with handling the local assets. This usually consists of signing a deed for surface property or mineral interests.

Can ancillary probate be avoided?

We get it: even with our help, this sounds like a headache, right? If your loved one has already passed away and owned property in multiple states, you will likely be unable to avoid ancillary probate, unfortunately. However, as always, be sure to consult with an experienced local attorney to discuss your unique situation and options. But, if you are looking to the future and preparing your own estate plan in order to avoid probate and the hassle, we can absolutely help you avoid ancillary probate as part of that. There are a few ways to avoid probate (regular and ancillary). These generally consist of either a trust or a life estate deed or transfer on death deed.

Using A Trust

If you own property in multiple states and North Dakota is one of those states, we can help you. The first option to avoid ancillary probate would be to set up a trust. A trust can own property, just like an individual. As such, when you pass away, the trust—rather than you—owns that property. In setting up a trust, you will have established a trustee. A trustee can then take care of the property held in trust with (usually) no court action necessary! This helps eliminate the need to open probate cases in multiple states as your trustee would already have the legal authority to manage the property and would not require a court to grant that authority.

Using Deeds

Often, the property we deal with in ancillary probates is real property (either surface interests or mineral interests). As you prepare your estate to avoid opening probate, life estate deeds and transfer on death deeds are two options to consider. A life estate deed allows you to convey real property to individuals of your choosing (the grantees), reserving a life estate for yourself. This means that you continue to use the property during your lifetime but, upon your death, ownership will transfer to the grantees. One downside of a life estate deed is that it can be difficult to change if you change your mind—all of the grantees would have to agree and sign any document. A transfer on death deed works in much the same way except you can change your mind and revoke the deed at any time. This provides more flexibility in estate planning; however, a transfer on death deed would not remove the value of the property from your estate and so this could be a downside if you’re also exploring ways to protect your estate from estate taxes or creditor claims.

Final Thoughts

Like other probate processes, ancillary probate can be challenging and time consuming. Whether you are looking to handle the process for a deceased loved one or to avoid opening probate of your own estate in the future, Boppre Law Firm can help with the details.

Please reach out to us via our website or call us at 701-852-5224 to let us know how we can be of assistance!