I have real estate in another state, does this affect my estate plan?
Do you have a beach house, inherited family property, vacation home, or other real estate in another state? If so, depending on how that property is titled, it could trigger multiple probate proceedings. Normally, when someone dies with a will, the will is probated in the decedent's county of residence and probate is opened in that county of the decedent's home state. This is done to transfer all property titled in the decedent's name to the beneficiaries under the will. (In North Carolina, real estate passes directly to the beneficiaries but it may take up to two years to get clear title to the property.)
When a decedent owned real estate in another state, however, a second probate proceeding may be necessary. The second probate proceeding is in the state where the real property is located. It is called an ancillary probate. An ancillary probate usually requires the personal representative to file an exemplified copy of the original will and estate file from the decedent's home state in the second state where the real estate is located.
The second probate may be a very simple probate that does not require an additional notice to creditors or it may be a full probate similar to the first probate. The type of ancillary probate in the second state depends on the real property laws of that state and whether the real estate can be transferred directly to the beneficiaries under the will or whether the property needs to be sold to pay creditors and expenses of the estate. The personal representative may have to get approval from the court to sell the real estate to pay debts.
If the beneficiaries disagree about any aspect of selling or transferring the property, then additional probate proceedings may be required. Multiple probates can be expensive and time-consuming. The more probates you need, the more expensive the process becomes and the longer it takes to administer the estate.
How long does probate take?
An uncomplicated full probate usually takes about a year in both North and South Carolina. If an estate is complex or if any aspect of the estate is challenged, the estate can be open for years.
Is there anything I can do to avoid probate?
Yes, there are several options for avoiding probate. A living trust is a great way to avoid probate and manage property during your lifetime. Rights of survivorship can also avoid probate. But don't immediately add people to the title to your property. Do-it-yourself property transfers can cause inheritance problems, jeopardize property tax exemptions, and result in penalties down the road. Before making changes to the title to your real estate, always discuss the pros and cons of any changes with an attorney.
For more information about probate or how to avoid it, call us at 704-887-5242 or fill out the form to schedule a private consultation in our Ballantyne office.
Photo: N. Roberts
DISCLAIMER: This blog contains general educational information only. The information in this post does not constitute legal advice to you and reading the information does not create an attorney-client relationship with Nancy Roberts or the Law Office of Nancy L Roberts, PLLC. You should not rely on this information as legal advice. Before taking any action, you should always seek legal advice from an attorney you hire, who advises you based on your specific facts, circumstances, situation, and the appropriate governing law.