Take this example: Mary, a widow, moved to Florida to be near her children and grandchildren. Mary has been a resident of Florida for the last five years. She previously lived in New Mexico with her husband. Mary passed away, and her son, Mark, needs to probate her estate. He files the necessary paperwork in Florida to open probate and the application is granted after many months.
While going through Mary’s things, Mark discovers that she had property titled in her name in New Mexico. Mary never mentioned the property, and it became considerably valuable since she purchased it. Mark calls the clerk in the county where the property is located, but they will not transfer the property to him. They tell him he needs to open probate in New Mexico to transfer the property.
A side note: During her life time, Mary could have executed, and properly recorded in New Mexico, a transfer on death deed to Mark. Upon her passing, the property could have been transferred to him directly, and the probate process could have been avoided altogether. Transfer on Death Deeds are permitted by state, so check the rules of your state before you execute one.
Mark has already spent a lot of time and money to probate his mother’s estate in Florida, and he does not want to go through the process again in New Mexico. He speaks to an attorney who tells him about ancillary probate.
Ancillary probate is essentially the extension of an established probate from one state to another. Mark can take the authenticated or certified probate documents he has from Florida and arrange for them be acknowledged and certified by a court in the county where the property is located in New Mexico—this basically means that the New Mexico court will recognize Mark’s authority as personal representative (or executor) in New Mexico since he was already appointed in Florida.
By doing this, Mark avoids the need to open an entirely new probate case again in New Mexico, and he can transfer his mother’s property with all the same personal representative rights as he would in Florida. After receiving a certificate from the court in New Mexico, the new document that Mark must file is called a Proof of Authority (Form 4B-801). Once that document is filed, Mark is acknowledged as a personal representative/executor in both states. He can then transfer his mother’s property in New Mexico.
A personal representative can also be called an executor in some states, but they usually mean the same thing—a court appointed person with the authority to act on behalf of the estate. New Mexico does not usually require a personal representative to have a bond, but other states do require it. The bond document should be included among the certified and authenticated probate documents from the originating court/jurisdiction.
Although ancillary probate may seem straightforward, states are varied in their approaches. Be sure to check the rules and regulations of the jurisdiction where you are located before you proceed and be sure to check the rules where the property is located. If you are unsure about the process, we always recommend that you speak to or hire a competent estate planning or probate attorney who can guide you.
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