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Estate and Elder Law

Ancillary Probate

            Because of the increased mobility of our society, non-domiciliary decedents often possess New York assets. A Will is normally probated in decedent’s domicile but when the decedent dies with property located outside his domicile, especially real property, his estate will require ancillary probate in the state the property is located.
            Ancillary probate or administration is secondary and supplemental to the probate in decedent’s domicile. Ancillary proceedings are intended to be supportive of comity and centralized administration, thus ancillary probate will be granted only when there has been actual probate in decedent’s domicile. A Will is only admitted to ancillary probate if it was admitted in testator’s domicile or is not being contested in testator’s domicile.
            Ancillary letters of probate are issued to certain persons in the following order: (1) a person expressly appointed in the Will as the ancillary New York executor; (2) the person who has domiciliary letters; (3) a qualified person whom the domiciliary executor appoints; and (4) a person entitled under the SCPA to letters of administration c.t.a. (SCPA 1418). In the case of intestate estates, ancillary letters of administration will first issue to the person appointed in the domicile and otherwise issue to a person entitled to letters of administration under SCPA 1001
            Under certain circumstances, a New York Surrogate’s Court can grant original probate to a non-domiciliary’s Will that disposes of property in this state and is deemed by this state to be validly executed (SCPA 1605). In Matter of Heller-Baghero, 26 N.Y.2d 337, 310 N.Y.S.2d 313, 258 N.E.2d 717 (1970), the Court of Appeals analyzed the factors including the New York contacts for courts exercising their discretion in entertaining original probate of a non-domiciliary Will. See, e.g., Matter of Raskin, N.Y.L.J., November 29, 2001, at 25, col. 6 (Sur. Ct. Suffolk County). Attempts to obtain jurisdiction over non-New York assets of a non-domiciliary based upon ancillary probate of a small New York bank account have been rejected by the Courts (Matter of Stern (Obregon), 91 N.Y.2d 591, 673 N.Y.S.2d 972, 696 N.E.2d 984 (1998)).
            In cases where the domicile is a foreign nation with a civil law system, there may not have been a decree of probate or any fiduciary appointed. In those cases upon proof that the Will was duly authenticated in the domicile jurisdiction and the heirs had registered their inheritance as is required in that country, ancillary probate may be granted for New York assets (see Matter of Covelli, N.Y.L.J., July 29, 2001, at 20, col. 6 (Sur. Ct. Kings County)).
            It is critical to remember that the purpose of ancillary probate is to marshal New York assets, protect New York creditors, including the state tax commission, pay New York debts and expenses, and only then distribute the remaining property to the domiciliary fiduciary or the beneficiaries.