Word of the Month: Ancillary Probate

Word of the Month: Ancillary Probate

By Melinda Gustafson Gervasi

January 29, 2024

Image by M. Gustafson Gervasi, 2024, Geranium on the Windowsill

The following is a hypothetical situation, it is not based on an actual client experience.  It is a story meant to illustrate an issue common to estate planning.

The death of a loved one is never easy.  Processing the affairs of a recently deceased loved one in January, specifically January in Wisconsin, is a very difficult task.  Recently the adult child of a former client of mine made their way through the snow and slush that mother nature dumped on my hometown of Madison, Wisconsin, and arrived at my office.  Once their winter parka, hat and gloves were nestled into the coat tree in my waiting area, we sat down at the conference table to discuss "next steps".

Papers were pulled from color coded files the child had gathered from their parent's home.  There was the title to the Toyota Prius, copies of recent IRA Statements, printouts from the bank where savings and checking accounts existed, the deed to the house.  The pile contained last year's income tax filings, a property tax bill due any day, and credit card statements.  And at the bottom of the stack of paperwork we found a deed for land in Michigan.  "Oh, that is the cabin -- my grandfather built it by hand, and left it to my mom when he died in 1973."

My conversation with the child now veered into the topic of "ancillary probate"; the cabin is over the border and in a different state. Oftentimes the Personal Representative (or called an Executor in other states) discovers the deceased person owned property held in another state.  For example, a lake home, cabin, recreational land, or a boat docked in warmer waters. In this specific situation, the child would need to open a Wisconsin probate, which would handle the transfer of nearly all the decedent's assets.  However, the cabin owned in Michigan would need to be transferred under Michigan law -- creating what we call an ancillary probate.  Procedures vary from state to state, and in some cases probate can be avoided if the state has a "small estate" method for avoiding probate on lower-value assets. The web of final affairs became a bit more layered with land owned outside of Wisconsin, but a path did appear.  And now the child as well as you the reader have expanded your vocabulary to include an understanding of "ancillary probate".

Remember that a blog is not legal advice; it is a means to spark thought and reflection.  Please consult with an attorney licensed in your state for advice specific to your situation.  Thank you for reading, be well!