One of the first questions on many clients’ minds is whether or not their estate plans need to include their vacation property. The short answer is yes. Absolutely. If you own a vacation home, timeshare, investment property, or any other asset outside of the state where you are domiciled, you must make sure it’s included in your estate plan. If you fail to include these in your estate plan, or fail to have an estate plan at all, your heirs will encounter issues, and usually the expense and hassle of court costs, when inheriting these assets.
Because state laws vary, your principal residence may even be divided one way in your home state while other properties, such as vacation homes, timeshares, or other pieces of out-of-state land, can end up divided completely differently. Of course, having a comprehensive estate plan puts you in control and lets you determine who will receive your property, regardless of where it’s located.
When property is located in a different state than where the deceased person was domiciled, your family may need to file a second probate case, referred to as an ancillary estate. Typically a local attorney must handle the ancillary estate, which adds more cost, time, and hassle for your family to settle your affairs. For example, if you died as a resident of California but owned property in Montana as well, you might have an ancillary probate in Montana for the property located there.
Probate is the legal process that is used to change title of property upon their passing, whether the deceased had a will or not. Each state has their own probate rules, making it fairly complex for families that inherit property in multiple states. It is important to know that while personal property may be probated in the state where the decedent is domiciled, real property must be probated in the state or country where it is located.
The need for ancillary probate can be avoided, however, through proper estate planning. Specifically, if the decedent transfers the property to his or her revocable trust before death, ancillary probate can be avoided. Of course, there are several ways to avoid the costs, delays, and headaches of probate other than a trust, but each alternative has pros and cons. One option is to title the property jointly with your spouse or with another individual. The property must be titled in a particular manner to avoid probate so that it automatically goes to the survivor. But this can make refinancing difficult, if you name a child as a joint owner, for example, and can also cause unnecessary taxes to be due. The result of using a revocable trust will likely be a savings of money, time, and hassles for your heirs.
Intestacy laws can be complicated because they vary from state to state. At the same time, a well thought out estate plan avoids unnecessary probate costs, in every state where you own property. With the help of a knowledgeable estate attorney, you can successfully avoid unnecessary complication and make settling your affairs as easy as possible for your heirs.
Remember to tell your estate planning attorney about everything that you own, no matter how small in value or where it is located. In order to fully protect your family and assets, all of your property (real and personal) must be included. If you have any questions about ancillary probate, or any other estate planning issues, contact us today.