Articles

Many New York residents spend part of the year in another state. While that lifestyle offers flexibility and enjoyment, owning real estate outside New York can create unexpected legal complications. Particularly, when it comes to probate and long-term care planning. What seems like a simple vacation home can, at death, turn a routine estate into a multi-state legal matter.

One of the most important concepts in this context is domicile. Even if you spend several months each year elsewhere, your legal domicile, your permanent home, determines where your primary probate proceeding will occur, which state’s estate tax rules apply, and which state’s Medicaid laws govern eligibility. If you remain domiciled in New York but own property in another state, your estate may ultimately involve more than one court system.

This is where ancillary probate comes into play. If a New York resident dies owning real estate in another state in his or her individual name, two separate proceedings are often required. The primary probate takes place in the New York Surrogate’s Court. In addition, a second proceeding , known as ancillary probate, must be opened in the state where the out-of-state property is located. That court must formally recognize the New York executor and authorize the transfer or sale of the property. Because each state has authority over real estate within its borders, a New York probate decree alone is typically not sufficient to transfer title elsewhere.

Ancillary probate is most commonly required when the out-of-state property was owned solely in the decedent’s name and was not held in a trust, jointly owned with rights of survivorship, or subject to a transfer-on-death deed (where permitted). Even a modest vacation property can trigger this second proceeding.

The practical impact is often underestimated. Multiple proceedings mean additional legal fees, separate filing fees, different court timelines, and more administrative work for the executor. If the family intends to sell the property, the executor may be unable to list, contract, or close on a sale until proper authority is granted in that other state. For families already navigating the loss of a loved one, this added complexity can create unnecessary delay and expense.

Fortunately, ancillary probate is often avoidable with advance planning. Transferring out-of-state property into a revocable living trust during lifetime is one of the most common solutions, allowing a successor trustee to manage or sell the property without court involvement. In some circumstances, joint ownership with rights of survivorship may accomplish similar goals, although this approach must be evaluated carefully, particularly in blended family situations. Some states also permit transfer-on-death deeds for real estate, which can pass property directly to named beneficiaries without probate. Each of these options carries tax, creditor, and control considerations that should be reviewed as part of a broader estate plan.

Out-of-state property can also complicate Medicaid planning. Real estate must be disclosed during the eligibility process, and its treatment depends on factors such as use, equity value, and timing of transfers. Questions may arise as to whether the property qualifies as an exempt residence, how it affects resource calculations, and whether estate recovery could apply across jurisdictions. Even if Medicaid benefits are sought in New York, ownership of property elsewhere must be carefully analyzed in advance.

The key takeaway is straightforward: owning real estate outside New York can significantly affect how your estate is administered. What appears to be a simple arrangement during life can become a multi-state probate proceeding after death. With proper planning,  particularly thoughtful titling and coordination of assets, families can often avoid ancillary probate altogether and spare their loved ones unnecessary cost, delay, and administrative burden.

If you would like to schedule a consultation to discuss creating or updating your estate planning, please contact our estate planning attorneys: Daniel S. Williford at 585-512-3511 or dwilliford@mccmlaw.com;  Spencer C. Malone at 585-512-3550 or smalone@mccmlaw.com; or Michael F. McConville at 585-512-3517 or mmconville@mccmlaw.com.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.