Ancillary Probate and Administration Estate Proceedings In New York State

When a decedent dies outside of the state of New York with property in New York State, ancillary probate (or administration if there is no will) becomes necessary in order to gain legal access to that property. Ancillary probate is essentially the act appointing a fiduciary in order to get control of the out of state property. Many of my clients get frustrated with the very idea of it. Their objection is reasonable and valid: why do they have to “go through probate twice” when they’ve already been appointed as the fiduciary? The answer is not satisfying, and like many areas of the law, can be seen as redundant:

SCPA § 1601 gives the legislative intent:

“It is the intent and purpose of this article that ancillary administration shall be granted in this state only when there is an actual administration in the domiciliary jurisdiction. If the law of such jurisdiction does not provide for the appointment of a fiduciary but vests the property of a decedent in a person or persons subject to the obligation to pay the decedent’s debts and expenses and the legacies bequeathed in his will or the distributive shares provided by law, such a person shall be recognized as the person acting therein to administer the decedent’s estate in accordance with the law thereof, but only if such person has complied with all the requirements of such jurisdiction to entitle him to receive the property of the decedent and is acting or will act there to administer the estate.”

In other words: because you have to. So we move forward.

Usually the decedent had real property in New York and lived out of state. If that property was in the decedent’s sole name, the process of ancillary probate or administration becomes a necessary step in order to either sell or put the property into the proper beneficiary’s name. 

I’ve briefly described a general overview of the process:

First, in the state in where the decedent resided and had opened the original estate file, the estate attorney or fiduciary must order what is called an exemplified copy of (usually) the complete file. 

Second, my office usually drafts the ancillary probate petition, prepares any ancillary affidavits required, and then sends them to the client for review. We must also prepare the application for a NYS Tax Waiver. We try to get this out as soon as possible because NYS Tax Department is not necessarily efficient in responding to these requests. Many times, my office will need to ask the Surrogate’s Court for a Citation in order to cite the Department of Tax in order to get a response. So delays are a common occurrence. Not only do clients have to wait for the Court to review the file, but then they have to wait for NYS to eventually and hopefully issue a Waiver. 

Third, usually after the Waiver is received and no objections are filed, then the Court will issue the Ancillary Letters. These Letters enable the appointed fiduciary to either sell or re-title the property. Many times my clients will hire me to do both gain the Letters and then either draft the deed to the beneficiaries or represent them in the real estate closing. 

We try to offer flat fees when it comes to these affairs if we can narrow down the representation to a defined scope of a services or we do our best to keep the hourly billing within our projected range; it doesn’t always work, but we try.