When someone dies owning property in their individual name there is a probate legal process through which their estate must go in order for their property to be passed on to their heirs. Probate is almost always undertaken first in the home state of domicile. The probate laws of the state in which the decedent was a permanent resident determine who will get the decedent's personal property (wherever it was located) and the decedent's real property located within the state. This is why probate is almost always filed in the decedent's home state.
Why Does There Have To Be An Ancillary Probate?
The rationale behind ancillary administration is that many states, including California, have jurisdiction to subject local assets to their own probate administration in order to protect local creditors. Indeed, an ancillary probate is an independent estate administration. Accordingly, the ancillary probate state has separate and distinct jurisdiction to retain local assets within its borders until debts due to local creditors and claimants are satisfied. In other words, the ancillary probate state may make independent jurisdictional determinations regarding decedent*s residence and right to local assets. However, conflict of laws rules may require the ancillary jurisdiction to defer to the law of the decedent*s domicile on questions of interpretation and validity of the will, and intestate succession and distribution.
Again, real property is governed by the laws of the state where it*s located, regardless of where the owner lives. For non-California residents who have real property in California, an ancillary probate must occur. In California, ancillary administration may be required in either of two cases:
(a) When a probate is opened in California, but the decedent has left property in another jurisdiction (state or country); or
(b) When a probate is opened in another jurisdiction, but the out-of-state decedent has left property in California.
In the first case, the ancillary administration is brought in the other state, i.e. ancillary to the California probate. In the second case, the ancillary administration is brought in California, i.e. ancillary to the other state*s probate.
Who Can Initiate an Ancillary Administration Proceeding in California?
Any interested person, or a sister state or foreign nation personal representative, may commence an ancillary administration proceeding by a petition to the probate court for either or both of the following:
(a) Probate of the non-domiciliary decedent's will.
(b) Appointment of a local personal representative.
However, if the decedent died while domiciled in a sister state, a personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates a different person to be the personal representative in California. The sister state personal representative may nominate another person as personal representative and the nominee has the same priority as the sister state personal representative.