Simply stated, an ancillary proceeding is a secondary proceeding to appoint an estate representative, which takes place after the initial “home state” proceeding. When a person passes away (a “decedent“) that person’s estate must be administered in the state and county where he was domiciled (i.e. permanent home). For example, if a decedent was domiciled in Florida, then the estate must be administered in Florida. But what happens if a decedent dies in Florida but owned an apartment in Manhattan? Two proceedings would be necessary. First, an estate representative must be appointed in the state where the decedent was domiciled. Then, an ancillary proceeding must be brought in the state where the apartment is located. The ancillary proceeding is the means by which an estate representative gains authority to dispose of such real property. In the example above, one estate proceeding must be brought in Florida and a second, ancillary proceeding, must be brought in the Surrogate’s Court of the State of New York. Only then will the representative have the authority to transfer the New York real property.
When is it appropriate to file an ancillary proceeding in New York?
Under New York law, an ancillary proceeding is only appropriate where 1) the estate is actually being administered or probated in the place of the decedent’s domicile and 2) the decedent owned real or personal property in New York. Subject to exceptions, an ancillary proceeding is usually only necessary when real property is involved.
What is involved in an ancillary proceeding?
In some states, ancillary proceedings are simply a formality; however, this is not the case in New York. Here, a Surrogate’s Court proceeding must be commenced by filing a petition and obtaining jurisdiction over all necessary parties just as in a full estate proceeding.
The petition must identify all distributees (heirs at law), New York property, creditors, and, in the case of a will, all beneficiaries named in the will. The petitioner must obtain exemplified copies of the probate or administration records of the proceeding in the decedent’s home state and include such records in the petition. In addition, jurisdiction must be obtained over the New York State Department of Taxation and Finance. Once jurisdiction is obtained over all necessary parties, Ancillary Letters will issue to the estate representative thereby giving her authority to act on behalf of the estate with respect to the New York property. Once appointed, the representative may sell or otherwise transfer ownership of the New York property.
ANTONELLI & ANTONELLI – New York City Probate & Estate Attorneys serving Manhattan, Brooklyn, Queens, Staten Island, and the Bronx.
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