Ancillary Probate for NonResidents

I recently had a client, David, whose mother passed away in Florida while owning a condo in Palm Springs. He was devastated, naturally, but then came the shock of learning he’d have to open a second probate – here in California. He thought the Florida probate covered everything. It doesn’t. This is a common issue for those inheriting from non-residents, and it’s crucial to understand how California handles these situations. The potential cost and delay can be significant.

What Happens When a Non-Resident Dies with California Property?

If a non-resident of California dies owning property within the state – a vacation home, rental property, or even a bank account – and the estate’s value exceeds the small estate limits, an “Ancillary Administration” (Probate Code § 12501) is usually required. Think of it as a secondary probate that runs parallel to the main probate proceeding in the decedent’s home state. It’s not a replacement for the primary probate; it’s an additional step to transfer clear title to the California assets.

Why is Ancillary Probate Necessary?

California courts need jurisdiction to transfer ownership of real property located within the state. The primary probate in Florida (in David’s case) doesn’t automatically give a California court the authority to act. The ancillary probate establishes that authority, allowing the California court to oversee the transfer of the California property according to California law. Without it, the property remains legally tied to the deceased, making sale or transfer impossible.

What Does the Ancillary Probate Process Look Like?

The process is similar to a full probate, but it’s streamlined. You’ll need to file a petition with the California court, appoint a California attorney (often the same attorney handling the primary probate), notice interested parties, and obtain a court order confirming the transfer of the property. The executor or administrator appointed in the primary probate typically acts as the administrator in the ancillary proceeding. We can often coordinate with the Florida probate attorney to minimize duplication of effort.

What if the Estate is Small?

As with any California probate, if the total value of the California assets, combined with all other assets owned by the decedent in California, falls below the limits for a Summary Probate, you generally do not need to open a full ancillary administration. For deaths on or after April 1, 2025, if the gross value of the estate is under $208,850, you generally do not need to open a full probate. You can use the ‘Affidavit for Collection of Personal Property.’ Note: This limit excludes cars, boats, and trust assets.

Can I Avoid Ancillary Probate Altogether?

Absolutely. Proper estate planning is key. Several strategies can bypass the need for ancillary probate. One is to use a Revocable Living Trust. Assets held in trust avoid probate altogether, whether it’s the primary probate or an ancillary one. Another option is to consider joint ownership with right of survivorship. This allows the property to pass directly to the surviving owner without probate. We often advise clients with property in multiple states to consider these options.

The CPA Advantage: Stepping Up Basis and Beyond

As both an Estate Planning Attorney and a CPA with over 35 years of experience, I bring a unique perspective. Many attorneys overlook the tax implications of these transfers. A proper ‘step-up in basis’ is critical. When an asset passes to an heir, the tax basis is adjusted to the fair market value at the date of death. This can significantly reduce capital gains taxes when the asset is eventually sold. My CPA expertise ensures we maximize these tax benefits, potentially saving your family thousands of dollars.

Furthermore, accurate valuation of the California property is essential. The IRS scrutinizes estate valuations, and an inaccurate appraisal can lead to penalties. My financial background allows me to oversee the valuation process and ensure compliance with all tax regulations.

• Strong Label: Understanding Ancillary Probate: It’s a common need for non-residents with California property.
• Strong Label: Avoiding Probate: Trusts and joint ownership can bypass the process entirely.
• Strong Label: Small Estate Limits: If the California assets are below a certain value, a full ancillary probate might not be required.

What causes California probate cases to spiral into delay, disputes, and extra cost?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

• Appearances: Prepare for the probate hearing.
• Steps: Follow strict probate procedure requirements.
• Organization: Maintain managing a probate case logs.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on Types of California Probate

• Spousal Property Petition: California Probate Code § 13650
  The gold standard for surviving spouses. This petition allows for the transfer of community and separate property to the surviving spouse without the delays of full probate. There is no dollar limit on the value of assets transferred under this section.
• Small Estate Affidavit ($208,850 Limit): California Probate Code § 13100
  For smaller estates (valued under $208,850 as of April 1, 2025), this procedure allows successors to collect money and tangible personal property by presenting a notarized affidavit to the holder (e.g., the bank), bypassing the courts entirely.
• Petition for Succession (AB 2016): California Probate Code § 13151
  Designed for “house-only” estates. If the primary residence is worth less than $750,000, this court-supervised summary proceeding allows for the transfer of the property. It is faster and cheaper than full probate but requires a judge’s order to clear title.
• Ancillary Administration (Foreign Domicile): California Probate Code § 12501
  If the decedent lived in another state (e.g., Nevada) but owned a vacation home in California, the California courts have jurisdiction over that real estate. “Ancillary Probate” is the process used to admit the foreign will and distribute the California property.
• Special Administration (Emergency): California Probate Code § 8540
  When time is of the essence. If assets are in danger or a business needs immediate management, the court can appoint a Special Administrator. These powers are temporary and specific, intended only to hold the line until a general executor is appointed.
• The “Heggstad” Petition (Trust Cure): California Probate Code § 850
  Often mistaken for probate, this is actually a petition to avoid it. If a decedent had a trust but forgot to title an asset in the trust’s name, a Section 850 petition asks the court to declare that the asset belongs to the trust, bypassing the need for a full estate administration.