Probate on Two Fronts: Virginia Ancillary Probate

Posted on : February 12, 2018, By:  George Dillon

When a person dies, their stuff has to go somewhere. With or without a Will, probate will probably be involved, depending on the size of the estate. Probate can be frustrating, time consuming and expensive. As you might imagine, ancillary probate – when an estate involves real property in two or more states – may feel like double trouble.

Ancillary – What Does it Mean?

When a Decedent is “domiciled” in Virginia and owns Virginia assets OR a decedent from another state owns property in Virginia, an ancillary probate is likely. Note that an ancillary probate pertains to real property or real estate, not personal property. If your Uncle Dwight lived in Pennsylvania, but owned personal property in Virginia, then a Virginia ancillary proceeding won’t be needed to transfer that personal property. However, if Uncle Dwight owned a home or other real property in Virginia, an ancillary proceeding is a must.

Why Do We Need It?

States do not have jurisdiction over real property located in another state. In our example with Uncle Dwight, the Pennsylvania probate court cannot dispose of Virginia property. A Virginia court can.

Residency matters even for the executor. The estate executor must use Virginia law to dispose of Virginia property, no matter where the executor lives. However, an out-of-state executor needs a Virginia resident to help with the probate, serving as agent for the estate in Virginia.

But He Left a Will!

Assuming the deceased person did leave a valid Will, then probate will be opened where the deceased person lives, as well as where real property is located. When ancillary probate is needed, then the interested party or executor will open the probate case in the same county as the real property.

When the executor is not a Virginia resident, he or she will need a Virginia resident to serve as agent. A local attorney is helpful also.

Or Did He?

Of course, sometimes a Virginia resident who owns property in another state may die without a Will. Virginia courts, again, have no jurisdiction over the out-of-state real property. Actually, the probate laws of the state in which the property is located dictates the property ownership.

And you’ll even see cases where the deceased person leaves a Will, but it’s declared invalid under Virginia law. In that case, the personal representative appointed to administer the estate will dispose of any real property according to Virginia’s intestate laws. This holds true even if the Will is considered valid in the decedent’s home state.

Embroiled in a Probate Case or Afraid You’re About to Be?

At Dillon Law Group, PLC, the attorneys work with you to analyze your circumstances and come up with a good plan. Please contact us at 757-962-4796 to set up an appointment or use the Contact Form on our website, https://www.dillonlawgrp.com/. We assist clients in the greater Virginia Beach/Newport News area.

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