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Divorce • Family law • estate planning
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Probate in a state other then your domicile

If you own property located in a state other than your domicile, you should not have to create another will in that state. The reason is that most states recognize a will that was legally executed in another jurisdiction. However, it may be helpful to have an attorney in the other state review your will to avoid any issues that could arise.

After you die, your family may have to confront the ancillary estate, which is a separate and different probate administration in a state other than the one in which you live. If you live in Virginia, your family would first have to open an estate in Virginia to administer your estate. This is called the “domiciliary estate.”

Then, they would open an ancillary estate administration in the other state to handle the probate of the real property located within that state. As soon as a will has been accepted by the probate court in the state of your domicile, it will usually be accepted by the other state without any additional proof. This is referred to as a “foreign will.”

Consider this scenario: You live in Virginia, and own real property in Florida. The reason that the real property in Florida cannot be administered in the Virginia probate proceeding is that Florida has no power over real estate situated in another state. One drawback of having two probate administrations is that they can be costly. You will need to hire two attorneys and deal with two different courts.

There are ways to avoid the time and expense that ancillary probate entails. Among them are:

  • Ownership of the property with another person in joint tenancy, or tenancy by the entirety
  • Placing the property in a revocable living trust
  • Use of a transfer-on-death deed

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