As we continue on in this time of social distancing and, in some communities, shelter-in-place, more and more people are faced with a difficult situation: handling out-of-state probate proceedings after the death of a loved one. Many seniors today are “snowbirds” who spend their winters in warmer areas (like here in Southern California) while keeping their actual residency in a different state. As Orange County probate lawyers, our practice often deals with the complications that arise when a person passes away without having a plan that properly accounts for asset ownership in more than one state.
In many cases, seniors will own additional property in the state where they spend their winters, including a vacation home, timeshare, car, boat, or financial accounts. When the senior passes away, a situation is created where an out-of-state, or ancillary probate proceeding must take place to administer that property. This is complicated enough for the senior’s family in regular circumstances since they often need help sorting through two or more sets of probate rules and regulations, which are different from state to state.
One significant challenge of an out-of-state probate proceeding is cost, since probate court fees are charged for each property in each different jurisdiction. You may also be faced with extra accounting and legal fees. If possible, you should try to find a probate attorney who a) is still practicing during COVID-19, and b) is licensed both in the home state of the deceased and the other state(s) where property is owned (or an attorney who can help you coordinate with any additional legal teams you may need).
Another serious issue can arise if your loved one did not leave behind a Last Will and Testament. In this case, the probate court will order distributions of the estate to the next of kin based on the laws of intestacy. The problem with out-of-state probate cases is that every state has different laws of intestacy, meaning the heirs in one state may not be the same in another. This can be a messy situation, which is why it’s important to make contact with an experienced probate attorney if this is the situation that you’re in.
There ways to avoid an out-of-state probate proceeding, but it all depends on the state where the additional property is held. There are some techniques experienced probate lawyers use to get around an out-of-state probate before a person passes away, such as placing the property into a Revocable Living Trust, transferring property into a jointly-held account, or drafting a real property deed where the property is transferred upon death. But keep in mind – this type of planning must be done prior to death, and these techniques must be legal in the state where the property is held.
If you need help with an out-of-state probate case or would like to plan to avoid out-of-state probate proceedings, please contact our Orange County probate lawyers at (949) 260-1400 to set up a consultation.