A family I worked with recently faced a challenge they never expected. Their father, a lifelong Brooklyn resident, retired after building a successful business and bought a small vacation home in South Carolina. He had a valid New York will, properly executed and clear in its intentions. When he died, his children began probate in Kings County Surrogate’s Court, only to be told the court’s authority stopped at the state line. The South Carolina house was frozen until a second, separate court proceeding was opened there—a process called ancillary probate.
Why a New York Will Isn’t Enough
The issue is jurisdiction. A state court only has authority over property within its own borders. When a New York resident dies owning real estate elsewhere—a condo in Florida, a cabin in Vermont, or a rental property in New Jersey—the New York Surrogate’s Court can probate the will and oversee the distribution of assets located within New York. It cannot, however, issue an order that transfers title to real property in another state.
To legally transfer that out-of-state property to the intended heirs, the executor must open a second probate case in the county and state where the property is located. This “ancillary” probate supplements the primary proceeding in the decedent’s home state. The executor must ask the foreign court to recognize the New York will and grant them authority to act.
This process is not a formality. It involves filing a new petition, paying separate court fees, publishing notice to potential local creditors, and often hiring a local attorney in that state. For the family, it means a second layer of administrative burden, expense, and—most significantly—delay.
The Ancillary Probate Process in New York
The situation also works in reverse. I often represent families where the deceased lived in another state, like Florida or California, but owned property in New York. This could be a Manhattan co-op, a Hamptons summer home, or commercial real estate.
In these cases, the primary probate takes place in the decedent’s home state. Once the will is admitted to probate there, the out-of-state executor must petition the appropriate New York Surrogate’s Court for ancillary letters testamentary. The process is governed by the Surrogate’s Court Procedure Act (SCPA). Specifically, SCPA § 1602 outlines what the petition must include. The foreign executor must provide our court with authenticated copies of the will and the order from the home state’s court admitting it to probate.
Our firm files these documents, along with a petition for ancillary probate, with the court in the county where the New York property is located. If the court is satisfied that the documents are authentic and the will is valid, it will issue ancillary letters. This gives the foreign executor the authority to manage and eventually sell or distribute the New York property according to the will.
The Cost of Inaction: Time, Money, and Complexity
The process is straightforward on paper, but rarely simple or quick. An ancillary probate is a full-fledged court case. It adds months, and sometimes over a year, to the estate settlement timeline. This delay is costly if the property requires maintenance, mortgage payments, and taxes, all of which the estate must pay while the title is in limbo.
The financial costs are also significant. You have two sets of court filing fees. You have two sets of legal fees—one for the primary probate attorney and one for the ancillary probate attorney in the other state. For an otherwise modest estate, these duplicate costs can consume a meaningful portion of the assets the family was meant to inherit. It is a frustrating and entirely avoidable expense.
Deliberate Planning Can Avoid This Entire Process
Ancillary probate is almost always preventable with prudent estate planning. The goal is to structure ownership of out-of-state property so it does not fall under the jurisdiction of any probate court upon your death.
The most effective tool for this is a revocable living trust. When you create a trust, you transfer the title of your property—including real estate in any state—from your individual name into the name of the trust. You still control the property completely during your lifetime as the trustee. Upon your death, the property is owned by the trust, not by you personally. There is nothing to probate.
Your successor trustee, whom you named in the trust document, can immediately step in to manage, sell, or distribute the property according to your instructions. No court involvement is necessary. No ancillary probate is required. This single act of stewardship saves your family an immense amount of time, money, and stress.
If your estate includes real property located outside of New York, the first step is an asset review to determine how your properties are titled. From there, we can map a strategy, often involving a trust, to ensure a seamless transition of your legacy.
