The very thought of probate alone can often cause stress. It is the tedious legal process of settling another person’s estate after they pass away. In Denver, the probate process involves submitting a will to the court, taking inventory of everything the person owned, paying off any existing debts and taxes, and distributing what’s left to the designated beneficiaries. It may sound simple on the surface, but probate can become a slow and complicated process. If there are disputes among heirs, it can drag on for months and sometimes even years.
The probate process varies depending on the state, and it’s often broken down into three main types:
- Informal probate: A quicker, less formal process where a will is presumed valid and there’s no need for court supervision.
- Formal probate: Court-supervised, especially when disputes or issues with the will arise.
- Supervised probate: The most involved form, where the court oversees every step.
Probate is a court-supervised process here in the state of Colorado. It can sometimes be a fairly straightforward process when all of the assets are located within the same state. However, during out-of-state probate, everything changes.
How Does Ancillary Probate Work?
Ancillary probate, or out-of-state probate, becomes necessary when a family member or loved one dies having owned property in a different state than where they resided. While this may seem like a negligible factor, it can add an extra layer of complexity and stress to the process, especially for those who are still grieving. All of a sudden you are dealing with two different sets of rules, two courts, and the growing realization that the process of settling your loved one’s estate will take even longer.
Imagine you have a father who lived in Texas, but he owned a piece of land in Colorado where your family would vacation during the summer. His primary probate begins in Texas, but what about the land he had in Colorado? That property requires a separate process. Ancillary probate allows you to legally transfer that property and make sure that everything is taken care of in accordance with Colorado law.
Here is a look at what happens during the ancillary or out-of-state probate process.
- Filing the original will: Once primary probate is underway in the state where the deceased resided, the executor or personal representative must then submit the original will (or an authenticated copy) to the Denver probate court. You must take this step in order to open an ancillary probate case. It allows the Denver court to begin overseeing the transfer of any assets located within the state.
- Appointing a personal representative: More often than not, the executor in the primary probate case will also act as the executor or personal representative in Colorado’s ancillary probate. Although if that person is either unable or unwilling to act as the executor for the out-of-state probate, the court may appoint somebody else to handle the ancillary case.
- Managing and transferring the property: Once the ancillary probate has been opened, the executor may begin managing and transferring all of the Colorado property. They may sell the property, continue paying off local debts, or simply transfer ownership to the rightful heir or beneficiary according to what is requested in the will.
- Closing the ancillary probate: After all Colorado property has been transferred and all necessary legal requirements have been met, the ancillary probate case can officially be closed. Either the property or the proceeds from the sale of that property will then be distributed as outlined in the will.
At first glance, ancillary probate may not seem like much, but it can add stress, expenses, and time to an already difficult situation. That’s why Evans Case and our trusted team of
Denver probate attorneys are here to help you cut through all the legal noise and take action. Allow our firm to take some of the pressure off so you don’t end up getting buried in paperwork and court dates.
Disadvantages of Ancillary Probate
For executors or personal representatives who are already handling probate in one state, the last thing you want to hear is that you need to open a second probate case. Though out-of-state probate may be necessary for some families, it certainly isn’t the ideal situation. Here are some of the disadvantages most commonly associated with ancillary care and why so many families try to avoid it.
1. The Costs
Probate comes with a variety of different costs and expenses, like court fees, attorney fees, administrative expenses, and more. Now, imagine doubling that. With ancillary probate, you’re essentially having to pay for everything twice: once in the state of primary residence and again in the state where the out-of-state property is located. Ancillary probate in Colorado requires its own separate court filings, legal representation, and administrative costs. Even if the process goes smoothly and is relatively simple, the costs can still add up. Not to mention that any complications or disputes that arise during probate can lead to additional legal fees on top of everything else.
Let’s say, for example, you had an aunt who lived in Illinois but owned a rental property in Denver. You’ll need to hire an attorney in Illinois to handle the primary probate. However, you will also need to hire a Denver probate attorney to manage the ancillary probate for the property in Colorado. Court costs, attorney fees, and other expenses can take their toll on the estate and ultimately, on the heirs who are waiting for their inheritance.
2. The Time
In an ideal world, the probate process would move quickly and all beneficiaries would receive their fair share of the estate without any disputes. But in reality, probate, especially ancillary probate, can be an extremely time-consuming process. Each state has its own set procedures and timelines that must be met, and managing two probate cases in two different states can often result in delays. It could take months, sometimes even years, to fully settle the estate.
The Colorado property will be tied up in the legal system until the ancillary probate case is resolved. During that time, the family may not be able to sell, rent, or even use the property. This uncertainty only adds to the stress and frustration that come with probate.
3. Jurisdictional Issues
Every state has different probate laws. What works in one state might not apply in Colorado, or vice versa. This is part of what makes the ancillary probate process such a headache at times. Colorado has its own rules, deadlines, and requirements for transferring property after death. Out-of-state executors may experience difficulty understanding how Colorado probate law intersects with their own state’s laws, which often leads to both confusion and mistakes.
Maybe you’re managing a probate case in Florida, but your loved one owned a cabin in Colorado. The probate process in Florida may have different deadlines for filing or procedures for transferring assets. Trying to understand two different legal systems at the same time may start to feel like trying to solve a puzzle without all the pieces.
Yes, it may be complicated, but ancillary probate is not always a nightmare. By working with a Denver probate attorney who understands both local and out-of-state laws, you can make the process smoother, faster, and less stressful for you and your family.
How Can Out-of-State Probate Be Avoided?
With all of the stress and responsibilities that come with ancillary probate, it often leaves families looking for a way out. The good news is, in many cases, it can be avoided in Denver. There are strategic ways to structure an estate plan that allow for ancillary probate to be bypassed altogether. With proper planning, you can save your family time, money, and an enormous amount of stress.
1. Joint Ownership of Property
One of the most effective ways to avoid ancillary probate is through joint ownership with rights of survivorship. This ensures that the ancillary property is passed on to the surviving owner upon the death of the other, without the need for probate. This is particularly common amongst married couples, though it can also be used in other family arrangements.
Imagine your parents owned a home in the mountains of Colorado, but they lived in Arizona. If they owned the cabin as joint tenants with rights of survivorship, the surviving spouse would automatically inherit full ownership of the cabin when the other passes away. In this scenario, no probate would be necessary and the transfer happens smoothly without the need for court intervention.
2. Revocable Living Trusts
Another powerful tool that helps families avoid probate and ancillary probate is a
revocable living trust. When a property is transferred into a trust, it is no longer considered a part of the individual’s personal estate. Instead, it is owned by the trust itself. This allows for the assets to be distributed directly to the beneficiaries upon death.
If your loved one owns an out-of-state property, putting that property in a revocable living trust can bypass the need for ancillary probate completely. Whether it’s a vacation home in Aspen or a piece of land in Boulder, a revocable living trust ensures that the property is transferred without the unnecessary delays and excessive costs of ancillary probate. A revocable living trust also helps keep the process private, unlike probate, which requires a public court proceeding.
3. Transfer-on-Death Deeds
In Colorado, a property owner can use a transfer-on-death (TOD) deed to name a beneficiary who will inherit the property directly upon their death. This will also bypass the need for probate. During the property owner’s lifetime, they will retain full control of the property and can sell, lease, or mortgage it as they see fit. After their death, the property will pass on to the beneficiary without having to go through probate.
Imagine your father lives in New York but owns property in Denver. A transfer-on-death deed would allow him to name you as the beneficiary so that the property becomes yours as soon as he passes away. No need for probate, no court involvement, and no delays.
4. Proper Estate Planning with a Trusted Attorney
Avoiding ancillary probate often comes down to proper estate planning. It requires carefully anticipating any challenges that your loved ones might face and taking the proper steps to make the process as seamless as possible for them. Working with a Denver
estate planning attorney can ensure that all of your assets, even those in other states, are easily passed on to your heirs without the added stress of ancillary probate.
At Evans Case, our Denver probate attorneys work closely with families to create effective estate plans designed specifically to avoid ancillary probate. From setting up trusts to using TOD deeds, we’ll guide you through every step of the process to make sure your loved ones and family members do not have to handle this alone.
