When is an ancillary estate required in probate court?

When a decedent owned real property in another county of South Carolina or another state other than the state in which probate proceedings have been initiated, it will usually be necessary to institute separate probate proceedings to arrange for the administration of the property in both counties and/or states. The proceedings in the primary state, usually where the decedent was domiciled will be the more important proceedings and deal with all the personal property and debts of the estate. The secondary proceedings are referred to as “ancillary” probate proceedings, and will usually be limited in several important ways:
• The personal representative appointed in the domiciliary state will be automatically entitled to appointment as ancillary personal representative subject, however, to the state’s residency requirements for personal representatives.
• No will contests or other challenges to the authority or effect of the domiciliary state proceedings will be permitted in the ancillary administration.
• No formal accounting requirements will be imposed on the ancillary proceedings, on the theory that the accounting will be completed in the domiciliary state.
Ancillary estate administration allows for effective title searches of real property in the counties or states where homes, land, vacation homes, time share interests, farms, and inherited real property is located. A lawyer in another state or county may be required to assist with the ancillary probate.

Generally, there is a modest fee to open the ancillary estate and certified copies of all documents filed in the primary estate are provided to the ancillary court. A file or case number is given for the ancillary estate. Deeds of distribution will be filed in the county or state where real property is located. Certified copies are then filed where the primary estate is being administered.

For example if the deceased lived in Aiken County and had a vacation condo in Hilton Head that he or she also rented, then the primary estate administration would be opened in Aiken County to deal with his or her house here, bank accounts, stocks, and outstanding medical bills. The ancillary estate would be opened in Beaufort County. The same personal representative could collect rent on the condo and report any expenses in connection with the condo like insurance, repairs, and painting prior to placing the condo on the market to the Aiken Probate Court. When the condo is sold, likely under approval from the Beaufort County Probate Court, any Summons, Petition, Lis Pendens, proof of service and consent documents, the resulting HUD statement and deed to the buyer is recorded there. Certified copies of the pleadings and the order granting the sale, HUD statement and deed are recorded with the Aiken County Probate Court.

DISCLAIMER The information given in this article is of a general nature and does not create an attorney-client relationship. You should always consult with an attorney regarding the specific facts of your situation. December 2020

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