Does Your Vacation Home Create a Probate Problem?
Most people who've done their estate planning—wills, powers of attorney, maybe even revocable trusts—think they're all set. But there's one issue I often see that catches families off guard: if you own real estate outside Texas, you may be setting up your heirs for ancillary probate in another state.
What is Ancillary Probate?
When someone dies owning real property in multiple states, each state where they own property typically requires its own probate proceeding. The "main" probate happens in your state of residence (the domiciliary probate), but additional "ancillary" probate proceedings are needed in each other state where you own real estate.
This isn't just about vacation homes in Colorado or Florida. It includes:
Rental properties
Undeveloped land
Mineral interests
Timeshare interests (usually)
A Process, Not Necessarily a Problem
Ancillary probate involves an additional legal process and may sound intimidating, but it isn’t always a difficult or involved process. If the foreign state where you own property has a simplified ancillary probate process, it may be a minor additional step, not a major burden. Sometimes, ancillary probate isn't worth planning around but rather preparing for. The key is to be aware of the issue, so that ancillary probate is an intentional choice rather than an unwelcome surprise.
Planning Options to Avoid Ancillary Probate
If this sounds like a mess you’d rather avoid, here’s the good news: ancillary probate is usually avoidable with proper planning. Here are the two main options to consider:
Transfer on Death Deeds (TODDs): Texas and many other states allow property owners to file a deed designating who receives the property at death, avoiding probate entirely. If you own property in a state with TODD statutes, this can be a simple, inexpensive solution.
Revocable Living Trusts: Another common solution. You transfer your out-of-state property into your revocable trust during your lifetime. At death, your successor trustee can distribute the property directly to beneficiaries without probate in any state.
When to Review Your Plan
If you acquired real estate outside Texas since your last estate plan update, it's worth checking:
Is the property titled in your trust's name?
If you don't have a trust, would one make sense given your overall estate?
Are there simpler options available in the state where the property is located?
Working Across State Lines
I regularly collaborate with attorneys across the country whose clients own Texas real estate, handling the Texas ancillary probate piece while they manage the domiciliary estate in their home state. Whether it's recording certified copies of out-of-state probate orders, handling heirship determinations, or preparing deeds for trust administration, I can coordinate with out-of-state counsel to make the Texas component straightforward. Similarly, if you're a Texas resident with property in another state, I work with local counsel in other jurisdictions to ensure your out-of-state property is properly addressed in your estate plan.
The Bottom Line
Ancillary probate isn't necessarily a disaster, but it's an avoidable hassle if you plan ahead. If you own out-of-state property and haven't recently reviewed how it's titled, it's worth a conversation to make sure ancillary probate is a deliberate choice rather than an unfortunate surprise for your family.
If you have questions about how your out-of-state property fits into your estate plan, reach out to us to schedule a consultation.
Ellen Williamson Law proudly serves Dallas County and the Greater Dallas Metroplex area. We guide our clients through the difficult and complex journeys related to estate planning, probate law, and guardianship. Our goal is to help you navigate the complicated legal process while providing the best possible customer service and reducing confusion.
If you’re ready to have a conversation with a member of our team, contact us today.