If a probate of a decedent’s estate is needed, it will be opened in the state in which the decedent resided at the time of his or her death. However, if the decedent owned real property in another state, an “ancillary” probate must be opened in that other state. The reason an ancillary probate is needed is that the state in which the primary probate is opened (i.e. the state of the decedent’s residence) does not have jurisdiction over real property located in another state. A court in the state of the primary probate does not have the authority to issue a decree affecting title to real property in another state. Only a court in the state where the real property is located has the authority to distribute the property to the estate beneficiaries (or to give the personal representative that authority).
Just as Utah’s procedures for primary probate follow the streamlined procedures prescribed by the Uniform Probate Code, Utah’s ancillary probate procedures are also relatively simple. (For a discussion of probate in Utah, see “Basic Estate Planning Information” on this website.) Where an out-of-state decedent dies owning real property in Utah, the personal representative who is appointed in the state of the primary probate need only file a Proof of Authority of Foreign Personal Representative with the probate court in the Utah county in which the real property is located. Once the Proof of Authority is filed, the personal representative has the authority to conduct business with respect to that real property (i.e. to sell or mortgage the property). No court approval will generally be needed.
The Proof of Authority should recite the basic facts giving rise to the ancillary probate, such as (i) the decedent’s name and date of death and the state and county of his or her residence, (ii) the name of the personal representative, and (iii) the name of the court that appointed the personal representative and the date on which the Letters Testamentary or Letters of Administration were issued to the personal representative. The Proof of Authority should state that there is no administration of the decedent’s estate, or application or petition for such administration, pending in the State of Utah, and should further state that the Proof of Authority is filed pursuant to the Utah Uniform Probate Code to enable the personal representative to exercise the powers of a local personal representative in the State of Utah and to maintain actions and proceedings in the State of Utah, subject to any conditions imposed upon nonresident parties generally. A copy of the Letters should be attached to the Proof of Authority.
Of course, no probate will be needed at all for any property, title to which is held in the decedent’s revocable trust. Thus, if title to the vacation home or other real property that is located outside the state of the decedent’s residence is held in the decedent’s revocable trust, no ancillary probate will be needed. The successor trustee of the revocable trust will have the authority to sell or distribute the property simply by virtue of his or her serving as trustee. (For a discussion of revocable trusts in Utah, see “Basic Estate Planning Information” on this website.)
Rust Tippett is the author of this blog post.
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This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, LLC. The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.