Many people own property and owe debts in more than one state. When a person who owns property in more than one state passes away, two different probate proceedings are necessary: a domiciliary proceeding and an ancillary proceeding.
- A domiciliary proceeding is the administration of the estate in the decedent’s state and county of residence.
- An ancillary proceeding is the administration of the estate in the non-resident state(s) and county/counties in which the decedent owned property.
How ancillary and domiciliary proceedings are handled in North Carolina
The domiciliary proceeding is a superior and controlling proceeding.
- All property from the ancillary estate will be transferred to the domiciliary estate at the conclusion of the ancillary estate proceeding.
- If the decedent resided in North Carolina, the original Will, if one exists, should be probated in North Carolina.
- If the decedent resided elsewhere and owned property in North Carolina, a certified copy of the Will must be filed in North Carolina.
Ancillary administration is important because title to any real estate that the decedent owned cannot pass to the decedent’s proper heirs without estate administration being performed.
If there is a need to open an ancillary administration in North Carolina, the domiciliary personal representative can make an application for it and is given preference by the Clerk of Court.
If the shorter of 90 days after the death of the nonresident decedent or 60 days from the issuance of the domiciliary letters has passed, any person under NC law can apply to administer the ancillary estate just as if the person had died in North Carolina.
The Clerk must delay appointment if they know about the existence of a domiciliary personal representative and give 14 days’ notice to exercise a preference for an appointment.
All assets of nonresident decedents being administered in North Carolina are subject to creditor claims.
Statute of limitations affecting the presentation of claims are governed by North Carolina law, except the creditors residing in the domiciliary state barred by the statutes of the state cannot file claims in the ancillary administration in North Carolina.
In the payment of claims by the ancillary administrator, the following rules shall apply:
- If the value of the entire estate, wherever administered, equals or exceeds family exemptions and allowances, prior charges, and claims against the entire estate, the claims allowed in this State shall be paid in full from assets in this State if such assets are sufficient for the purpose.
- If such total exemptions, allowances, charges, and claims exceed the value of the entire estate, the claims allowed in this State shall be paid their proper percentage pro-rata by class, if assets in this State are sufficient for the purpose.
- If assets in this State are inadequate for either of the purposes stated in subdivisions (1) or (2) above, the claims allowed in this State shall be paid, pro rata by class, to the extent the local assets will permit.
- If the value of the entire estate, wherever administered, is insufficient to pay all exemptions and allowances, prior charges and claims against the entire estate, the priority for an order of payment established by the law of the domicile will prevail.
The attorneys at Hopler, Wilms, & Hanna, PLLC routinely work with attorneys in other states to assist in administering ancillary estates.
If you have a loved one who owned property in North Carolina but resided in another state or are an out of state attorney looking for an attorney to assist in North Carolina proceedings, contact our office today.
Our experienced attorneys can help administer the estate in North Carolina.
