What is an Ancillary Probate Proceeding?
According to New York State law, ancillary probate may be used when a non-domiciliary decedent owns real and/or personal property which needs to be administered in this state and there has been probate in a foreign (domiciliary) jurisdiction.
This means that if a representative of a probate proceeding initiated in a foreign jurisdiction requires access to assets located in New York, they will have to file for an ancillary proceeding in this state. The reason for that is because only the New York Surrogate’s court has jurisdiction over the assets that are considered to have New York situs.
It’s worth mentioning that the type of ancillary proceeding will depend on whether the deceased died with or without a will. If there was a will the proceeding will be called ancillary probate and if not, the proceeding will be called ancillary administration.
How Does Ancillary Probate Work in NY?
The person responsible for representing the estate in New York (ex. executor) should be a US-Citizen or a non-US citizen living in New York. A non-domiciliary alien must appoint a New York resident as a co-representative. Such person(s) would file a petition with the New York Surrogate’s Court, indicating which assets are located in the state and listing the beneficiaries of the deceased. The petition is presented with an authenticated copy of the Will, decree, or order admitting the Will to probate and letters issued on the foreign (domiciliary) jurisdiction, if applicable. In situations in which the documents presented are in a foreign language (Ex. domiciliary jurisdiction is in Brazil), such documents must also be introduced together with a certified English translation.
The court will determine if all the documents presented are valid and if so, it will issue ancillary letters testamentary or ancillary letters of administration to the non-domiciliary executor or administrator. After letters are issued, the executor/administrator shall be responsible for collecting all of the estate’s assets and pay for all of the estate’s debts before any distribution is made to the beneficiaries. In some cases, it might also be necessary to file the final tax return of the deceased and advisable to file a fiduciary income tax return for the estate.
In conclusion, the beneficiaries must take all the above steps mentioned before having New York property transferred to their names. It is of the utmost importance to hire an experienced probate attorney to assist with this proceeding and to help them resolve the case in the most effective manner. Contact our experienced legal team at Chaves Perlowitz Luftig LLP in Manhattan today for a free case review.
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