Fairfax, VA Probate Blog

Thursday, March 6, 2014

Ancillary Probate in Virginia

What is Ancillary Probate? Ancillary Probate generally is a secondary probate process necessary to pass a decedent's real property or personal property that is located within the jurisdiction outside of the decedent's home state. Most states have passed laws making ancillary probate a fairly straight forward process.    

When a resident of another state dies, and that person's domicile was that other state (otherwise known as a foreign jurisdiction), if that person died with interests in real property that was located within the Commonwealth of Virginia, that person's Last Will and Testament may likely have to be submitted to the Circuit Court to properly pass that deceased person's real property (and sometimes personal property). Depending on the circumstances, the appointment of an executor may or may not be necessary.

The reason for this is that the decedent's domicile generally has jurisdiction and authority over the decedent's person, the decedent's personal property and the decedent's real property within that foreign jurisdiction. However, the Commonwealth of Virginia has authority over the real property that is located within Virginia.    

NOTE: If that person died without a valid Last Will & Testament, the streamlined ancillary probate process may become more cumbersome. However, as it pertains to real property, the heirs may be able to file a real estate affidavit (in lieu of a Last Will & Testament) with the Commonwealth of Virginia to pass real property without engaging in the formal probate process.  


Virginia Code Sec. 64.2-450 Probate of copy of will proved outside the Commonwealth; authenticated copy

When a will relative to an estate within the Commonwealth has been proved in another jurisdiction, an authenticated copy of the will and the certificate of probate of the will may be offered for probate in the Commonwealth, and there shall be a rebuttable presumption that the will was duly executed and admitted to probate as a will of personal estate in the jurisdiction of the testator's domicile and the circuit court, or the clerk of such court, where it is offered shall admit such copy to probate as a will of personal estate in the Commonwealth. If such copy indicates that the will was admitted to probate in a court of another jurisdiction and was so executed as to be a valid will of real estate in the Commonwealth by the law of the Commonwealth, such copy may be admitted to probate as a will of real estate. An authenticated copy of any will which has been self-proved under the laws of another state shall, when offered with its authenticated certificate of probate, be admitted to probate as a will of personal estate and real estate.

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