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Out of State Probate (AKA Ancillary Probate)

Probate is a process that nobody wants to go through. That being said, if it is handled correctly it can lower the stress and the conflict between family members. In this article, we are going to explain how the probate process works if you have to open a probate in another state first and then open an ancillary probate in Arkansas.

Why do I need to open a probate case in another state?

Probate in another state might be necessary if your loved one passed away owning property in multiple states. If someone lives in one state but owned real property in another state, it is possible that you will even need to open two, maybe three or more probate cases depending on how many states the decedent owned property in. Why is this? Well, the short answer is because property, especially real property, is governed by the laws of the state where it is located and not the state where the owner resides.

For example: John lives in Michigan and has his home, bank accounts, and personal property there. However, John also owns a lake house in Arkansas and a beach house in Florida. After death there will need to be a probate opened in Michigan, the home state or “domiciliary state”, but also an “ancillary” probate in Arkansas and Florida to address the lake house and beach house.

This happens more often than you think. The most common scenarios are when there is vacation property, like the example, or inherited property. Say John lives in Michigan, but he is from Arkansas. His parents owned 40 acres and he inherited it. He liked keeping it in the family and rented to the farmer down the road. Now, John has passed away and we need to deal with the Arkansas real estate.

How long do I have to open a probate in Arkansas?

In Arkansas the laws regarding the time limit to open probate are broad, giving the executor or other interested party 5 years or the amount of time allowed in the home state, whichever is longer. When real property is involved, the will of a non-resident which has been admitted to probate in another state may be admitted to probate in Arkansas regardless of timing. However, we strongly suggest not waiting that long. One of the biggest time hindrances to completing a probate action is the creditor claims period, which is a six (6) month period in Arkansas. During this time the property cannot be transferred while you wait to see if any unknown creditors come forward. Also, when real property is involved, that also means that there are taxes to be paid and other expenses associated with maintaining the property. In addition, if the subject real property is sold and acquired by someone else in good faith believing there to be no will or probate, you could lose the rights to the property. The sooner the process is started, the better. So, what is the out-of-state, or ancillary, probate process for Arkansas?

The Ancillary Probate Process in Arkansas

First, you typically open an estate in the estate where the person resided. Once a probate case is opened in the home state and a personal representative has been appointed there, then it is time for an Arkansas ancillary probate. NOTE: If there is no need for a probate in the home state, then you can still open a probate in Arkansas to deal with the Arkansas real estate. It won’t be an ancillary probate, just a regular probate.

The next step then is to figure out which county in Arkansas is the appropriate place to file the probate case here. If the decedent owned property in more than one county, you would file in the county where the greater value of the land is located.

Once a probate case is opened in the home state and an estate administrator has been appointed there, Arkansas allows for a bit of a shortcut to getting the probate process started here. For that process to get started, we need some documentation from the home state. That documentation is a certified copy of the petition, order, and letters from the home state. The names may be different, sometimes different states have different names for the same documents.

Arkansas law says that if you file a certified copy of the proper probate file from the home state, the administrator from the home state can automatically be appointed as administrator in the Arkansas probate without a hearing or the other typical considerations, notices, and waivers. This saves time and expenses that would typically be involved.

From here, Arkansas’ normal procedure for probate cases applies, subject to some special provisions. This process includes a creditor notice period, as mentioned previously, and the typical requirements of notices to heirs and filing of other documents like an inventory and accounting. During the time that the creditor period is open, if the heirs wish to or it is in the best interest of the estate, the Court may allow you to sell the property for a fair price. Once the creditor period is over and the property in Arkansas is collected or managed in the appropriate way and valid debts are paid, the Court will then allow for a deed to be issued for the land or the proceeds from the sale of the property to be distributed to the executor for distribution in the home state or directly to the beneficiaries of the estate. Upon transfer to the home state, the ancillary probate in Arkansas may be closed.

Why Hire wh Law?

What’s more fun that hiring one attorney? Hiring two! All kidding aside, unfortunately filing any lawsuit in another state requires you to hire an attorney that is licensed in that state. You don’t want just any attorney though, you want one that is knowledgeable, prompt, and efficient. The laws in each state are different, and Arkansas is no exception. We can assist you with navigating the steps necessary to manage estate assets, handle all of the court pleadings, notices, creditor claims, and any questions or advice you may need along the way. Rather than face the hardships that come with trying to conduct business in another state, you can hire our firm to handle all of these requirements for you, possibly without ever having to step foot in the state. We know the process from top to bottom and how to work with out-of-state attorneys and navigate through the special requirements of Arkansas ancillary probate laws. We pride ourselves on the use of technology such as the ability to text us at any time and offering affordable rates and payment plans. Contact us for a free, no-risk consultation today.