This is my ninth post on my continuing series on the Virginia Probate Administration concerning ancillary probate proceedings. You can read previous posts on this series including Part I: introduction to probate (here), Part II: qualifying to be the personal representative (here), Part III: the duties and liabilities of the personal representative (here), Part IV: the initial steps (here), Part V: inventory and accountings (here), Part VI: Exemptions and Creditors (here), Part VII: Augmented Estate and Exemptions (here) and Part VIII: Taxes (here).
Ancillary probate arises when a decedent domiciled in Virginia owns assets in another state or a decedent domiciled in another state owns assets in Virginia. Personal property and tangible property are not usually an issue. All that is generally needed for a personal representative to transfer personal property to a beneficiary is a death certificate. As long as the personal representative can gain control of the tangible property without a court order, tangible property also transfers in similar manner. But, there is no guarantee it could be that easy and ancillary probate administrion might have to be opened in the state where the property is located.
Because states do not have jurisdiction to determine the rights in real property located in another state, real property is a more complex issue. If the decedent died with a valid will, the personal representative will need to determine the appropriate steps with respect to opening ancillary probate. Normally, that would require opening probate in the state where the real property is located and establish the beneficiaries title to the property. Depending on the laws of the other state, a non-resident personal representative might need to locate a resident of the state where the property is located to qualify as personal representative to administer the ancillary probate or take any actions with respect to the property, like selling the property.
Realty Located in Another State
If the decedent domiciled in Virginia died intestate and owned property in another state then the issue becomes more complicated, assuming there is no issue with respect to tangible and personal property. Virginia law has no jurisdiction over realty in another state. Thus, the probate laws of the state where the property is located will govern ownership of the realty.
Under Virginia code, the personal representative would not be responsible for taking actions with regard to property located in another state. The Virginia personal representative could let the heirs-at-law, under the intestate statues of the state where the property is located, take the necessary actions to establish title and gain control of the property.
However, many times the personal representative would be the heir-at-law and would need to open probate in the other state to gain title to the property. The personal representative in Virginia might be able to qualify as personal representative in the state where the property is located but it depends on the laws of the other state. Again, a resident personal representative might be necessary.
Assets in Virginia
With respect to personal property, if a decedent, domiciled in another state other than Virginia, died with a will and the personal representative qualified in the other state, then only an authenticated copy of the will and a certificate of probate from the court of the other state may be offered for probate in the clerk’s office of the proper court in Virginia to gain control of the personal property.
The personal representative is restricted by a higher requirement for the purposes of probating real property. In addition to the authentication requirements, under Virginia law, the will also must meet the Virginia standard for executing a will. For example, one of the requirements for a valid execution of a will is that the testator properly executes or acknowledges the will before at least 2 witnesses. If the will executed in another state does not meet Virginia requirements, then the will is not valid. If the will is authentic, but not valid, the will can still dispose of the decedent’s personal property located in Virginia. However, real property can not be disposed of if the decedent’s will is executed in another state and does not meet Virginia execution requirements. Without a valid will, Virginia intestate laws would govern. Thus, the title to the real property might go to someone contradictory to the decedent’s will.
If there is no will and the decedent died intestate, then the Virginia intestate statutes would govern ownership of the property.
Under any situation, the personal representative must follow Virginia law regarding the administration of the Virginia property, including requirements for filing an inventory and accounts.
I have one more topic to discuss regarding Virginia probate administration and that deals with any miscellaneous topics that I have missed.