How To Address Ancillary Probate

Probate can be a complex and emotionally challenging process for our clients. It’s the legal procedure often required after the passing of an individual, which can be particularly daunting when dealing with the loss of a loved one and the added confusion of a lengthy court proceeding to settle their estate.

Handling Ancillary Probate

If your deceased family member resided in a state other than North Dakota, you’ve likely already initiated probate in their home state. Now, your local attorney may be advising you to undergo something called “ancillary probate” in North Dakota to address property owned by the decedent within this state. Probate is never straightforward, but dealing with it in multiple states can seem overwhelming. Rest assured, we are here to simplify the process as much as possible.

Understanding Ancillary Probate

Ancillary probate is a legal process that takes place in a state other than where the primary probate case was initiated. For example, if your loved one lived in Minnesota but owned mineral rights in North Dakota, the primary probate case would be filed in Minnesota. However, the Minnesota court lacks jurisdiction over North Dakota minerals. Consequently, the Personal Representative appointed in the Minnesota probate case must file for “ancillary probate” in North Dakota to handle the North Dakota property. This is where our expertise becomes invaluable.

Differences Between Ancillary Probate and Standard Probate

In essence, ancillary probate is typically faster, simpler, and often less expensive than the primary probate process. This is because it doesn’t involve all the same steps as the primary probate. In the primary probate case, various requirements must be fulfilled, including appointing a suitable Personal Representative, identifying heirs, notifying and paying creditors, locating and listing all assets of the decedent, and devising a distribution plan. In ancillary probate, most of this work has already been completed in the primary probate case. In North Dakota, opening ancillary probate usually entails submitting an application to the Court along with copies of the court documents from the other state. The North Dakota court reviews this documentation and acknowledges that the Personal Representative from the original state has the authority to manage the estate in North Dakota. Once ancillary probate is established in North Dakota, the Personal Representative can proceed to handle local assets, often involving the signing of a deed for surface property or mineral interests.

Can Ancillary Probate Be Avoided?

We understand that even with our assistance, this may seem like a daunting process. Unfortunately, if your loved one has already passed away and owned property in multiple states, avoiding ancillary probate may be challenging. However, it’s advisable to consult with an experienced local attorney to explore your unique circumstances and options. Looking ahead, if you want to prevent probate and its associated hassles, we can help you avoid ancillary probate as part of your estate planning. There are a few ways to do this, primarily through the use of a trust, a life estate deed, or a transfer on death deed.

Using A Trust

If you own property in multiple states, including North Dakota, we can assist you in establishing a trust. A trust can legally own property just like an individual. Upon your passing, the trust, rather than you, becomes the owner of the property. By creating a trust, you appoint a trustee who can manage the trust’s property without the need for court involvement. This eliminates the necessity of opening probate cases in multiple states, as your trustee already possesses the legal authority to manage the property.

Using Deeds

For many of the properties typically involved in ancillary probate cases, such as real estate or mineral interests, life estate deeds and transfer on death deeds offer alternatives to consider. A life estate deed allows you to transfer real property to chosen individuals (the grantees) while retaining a life estate for yourself. This means you can continue to use the property during your lifetime, with ownership automatically passing to the grantees upon your death. However, it’s important to note that changing a life estate deed can be challenging, as it requires agreement and signatures from all grantees. On the other hand, a transfer on death deed operates similarly but offers greater flexibility, allowing you to revoke the deed at any time. This flexibility can be advantageous in estate planning. However, it’s worth noting that a transfer on death deed does not remove the property’s value from your estate, which may affect estate taxes and creditor claims.

Concluding Thoughts

Like any probate process, ancillary probate can be complex and time-consuming. Whether you’re navigating it for a deceased loved one or seeking to avoid it in the future through your own estate planning, Boppre Law Firm is here to assist you with the necessary details.

Our attorneys are here to help and guide you. To discuss ancillary probate with one of our attorneys, please give us a call at (701) 852-5224 or contact us through our website form.