Thursday, October 18, 2012

What is an Ancillary Probate?

When I saw the envelope in my in-box I knew -- damn, the register of deeds rejected our filing.  A thick envelope is never a good thing; it means everything you sent them is coming back, a thin envelope means it was accepted an a confirmation slip awaits.  Just the opposite of college acceptance letters, or at least back in the day when college admission was conveyed via the US Mail and not the internet.

Because the man who had died was listed as one of three people on the deed, with no statement of what interest he owned (join tenant, life estate, etc.) the presumption is tenants-in-common.  As such, his share needs to be transferred via probate, and not the much more simple HT-110 form.  To complicate matters, the decedent was a resident of Illinois, not Wisconsin where the property at issue is located.  And when that happens, an ancillary probate is needed.

Ancillary is an adjective which means to provide necessary support to a primary activity or operation.  Since the decedent lived in Illinois, the Illinois probate is primary (remember, probates are matters of State law).  However, and Illinois proceeding cannot transfer real property owned in Wisconsin.  A probate proceeding here in Wisconsin, in the county where the property is located, will be required to change the deed.

Had the deed stated joint tenants, an ancillary probate would have been avoided.  The moral of this story is -- when you own property in a state where you do not have residency (residency is easily determined by where you vote), be aware that an ancillary probate may pop up unless to take action.

Please note, a blog is not a legal opinion.  Consulting with an attorney in your state about the specifics of your situation is essential.  And thanks for reading.

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