- Washington is the Domiciliary Jurisdiction (eg, Washington Resident with out of state property)
- Washington is the Ancillary Jurisdiction (eg, Non-Resident with Washington property)
Decedent’s Estate Contains Real Property Not Located in Washington, Therefore, the "Foreign" Jurisdiction is the Ancillary Jurisdiction
- A Washington resident Decedent
- Having a Washington probate estate
- But whose estate contains real property located outside of Washington (eg, a vacation home in the Rockies).
The legal problem: Washington Courts lack jurisdiction (legal authority) over out-of-state real property. Consequently, a probate will likely be necessary in the jurisdiction where the real property is located in order to legally transfer its title. In this situation:
- Washington is the resident jurisdiction, the site of the domiciliary probate.
- The other jurisdiction is the foreign jurisdiction, the site of the ancillary probate.
A practical problem, at least with a testate Decedent: Decedent’s Will will have already been filed in Washington, so how can the Will also be filed in the foreign jurisdiction? The solution (RCW 11.20.090) is to obtain from the Clerk of the relevant Washington probate Court what is known as an "Exemplified Copy" of the Will, for filing in the ancillary probate:
- A certified copy of Decedent’s Will as filed in the domiciliary probate, and
- A certified copy of the Order Admitting Will to Probate in the domiciliary probate.
Ancillary probates are begun and administered in a variety of ways among the states. Traditionally, ancillary probates are treated no differently than domiciliary probates,ie, applying for Letters, administering the estate, and closing it, usually with the foreign real property being distributed directly to Decedent’s beneficiaries or heirs, depending on whether Decedent died testate or not, respectively, and not indirectly to the Personal Representative of the domiciliary probate for further distribution.
Some states, however, have substantially eased their requirements for an ancillary probate. Arizona, for instance, provides that if a domiciliary probate is being had outside of Arizona (and no probate is pending for the Decedent in Arizona), then by filing a certified copy of his/her Letters (and any Bond) in the appropriate county of Arizona (ARS 14-4204), the domiciliary Personal Representative may obtain, for example, all the powers over assets in Arizona that a Personal Representative granted Letters by an Arizona Court would have (ARS 14-4205). These statutes effectively eliminate the need for an ancillary probate proceeding in order to transfer title to Arizona real property (or maintain an Arizona lawsuit).
Practically speaking, ancillary probates usually occur in out-of-the way places — they often involve vacation homes, such as at the beach, a lake, or in the mountains or for hunting or fishing — where for all practical purposes the engagement of local counsel will likely be required, not only to deal with the local laws and legal procedures but also because the area is likely remote and distant, not lending itself to your attempting to perform the ancillary probate yourself.
A Probate for Decedent’s Estate Has Already Begun in Another State
- A non-Washington resident Decedent
- Having a non-Washington probate estate where Decedent’s Will has already been filed
- But whose estate contains real property located in Washington (eg, a vacation home in the Cascades).
Decedent’s Will will then be filed in Washington via an exemplified copy of the Will and its Order of Admission. RCW 11.20.090 Other than the filing of an exemplified copy of Decedent’s Will and its associated Order, a Washington ancillary probate is opened, administered, and closed identically to a Washington domiciliary probate. RCW 11.20.100 Note that Washington has not effectively eliminated ancillary probates, as has Arizona.
Note: If Washington is the ancillary jurisdiction, then a Washington Court is bound by the full faith and credit clause of the Federal Constitution to accept the adjudication of a Court in the domiciliary jurisdiction on the question of the validity of Decedent’s Will. Estate of Tolson, 89 Wn.App. 21 (1997). Therefore, if the domiciliary jurisdiction admits Decedent’s Will, it must be admitted by a Washington Court, even if the Will were no otherwise admissible in Washington, for example, because it was a holographic Will.
Bottom-line: Ancillary probates can be costly and time-consuming. If the estate you are handling involves out-of-state-real property, WASHINGTON PROBATE suggests that you call the county bar association in the county where the real property is located and ask for a referral to a probate attorney known for handling ancillary probates. And if you currently own out-of-state real property, please consider titling it in a form not necessitating a probate procedure for transfer upon death, for example:
- Simply: Either Joint Tenancy or, if the foreign state allows such form, Transferable on Death; or
- More conveniently (but expensively): in a Living Trust.