Keep Your Vacation Home Out of Ancillary Probate


It's the middle of summer, and families all across Northern Virginia are looking for ways to beat the heat. Does your family love to escape at the beach? What about a cool mountain retreat? Maybe you like to take a week every summer to visit friends or family up north. Wherever you travel, we know that finding comfortable, affordable accommodations can be a struggle. That’s why more and more Virginians are choosing to invest in vacation properties. Not only does a beach house or mountain cabin offer a consistent retreat from busy city life, but it can also be a way to build wealth and invest in the future. 

Taking Steps to Protect Your Vacation Home Investment 

If you are considering purchasing a vacation home, or if you’ve already made the investment, what steps have you taken to protect your property? Protecting a part-time residence, as opposed to your year-round home, can take a whole different approach. You may consider different kinds of insurance, different security, even holding title differently. 

If you own a second home out of state, this becomes even more important. Out of state properties take extra care and attention to ensure that they remain safe and well-tended. They also need to be carefully managed before you pass. Why? Without properly planning for out of state property to pass to your loved ones, that gorgeous ocean view condo can quickly become more of a burden than an asset for your heirs. 

The Risk of Ancillary Probate

Outside of the estate planning world, the term “ancillary probate” is not heard too often. However, in our day-to-day, it’s something we work hard to help our clients avoid. What is ancillary probate? Basically, it is the requirement that an out-of-state resident go through a second probate process in the state where real estate is located. It’s easiest to understand using an example. 

Let’s say we are working with Tom, a Leesburg native and homeowner. Tom lives here in Leesburg full time, and all three of his children live at home with him. The two younger kids are in middle and high school, and his oldest is a sophomore in college out of state. When all three kids were young, Tom bought a beachfront condo in Ocean City, Maryland. He and the kids have spent some incredible summers at the condo, enjoying the sunshine, riding bikes, and playing in the surf. To protect his children, Tom has a will in the Commonwealth of Virginia that provides for his three kids, leaving them equal shares of everything, including their comfortable Leesburg home. When Tom passes suddenly, his sister (who is named executor in his will) steps in to care for the younger children at home and help guide his estate through the Virginia probate process. She gets a great lawyer, and she does a wonderful job caring for the kids’ needs. But, probate is still pretty overwhelming. It takes a long time, she isn’t able to access any of Tom’s funds that he left behind to care for the kids until the proceedings are over, and she keeps having to take off of work to go down to the courthouse and meet with her lawyer. Then, on top of everything, the matter of the Maryland condo comes up. Why? Because his out of state real estate can’t pass through Virginia probate. Any real estate held in a different state than the decedent’s residence will need to go through probate in that state. So, Tom’s sister has to drive back and forth to Ocean City. She has to hire a Maryland probate attorney. The property gets held up. It takes a long time to move through the probate process before she can get access to be able to sell it. In short, it’s a mess. 

Tom’s story is a typical one of ancillary probate. As we think about Tom, there are a lot of things that could have been done in his estate plan to ease the time, stress, and cost of probate on his sister and his kids. Working with an experienced trusts and estates attorney could have prevented these undesirable consequences. 

If You Own Property Out of State, It’s Time to Take Control

As an estate planning attorney, I often meet with clients who say, “I don't need much. My life is pretty simple. I just need a simple will.” For some people, that may be true. However, owning real estate out of state is one of the most prominent triggers that says to me, this may not be a simple will situation. This family needs a more comprehensive estate plan. If you own, or are considering buying, real estate out of state, let’s talk. Give Wakefield Law a call at (703) 771-9740.