An estate that owns land outside the state where its owner died usually needs a second proceeding, and the two do not run on the same rules. This subject covers when ancillary administration is required, how a will valid where it was signed is treated elsewhere, the small-estate routes that avoid a second case, what a state may demand of an out-of-state executor, and where a trust is administered.
Nearly every state accepts a will validly executed under the law of the place where it was signed, or where the testator was domiciled at signing or at death, which covers most moves between states. The gaps are real: holographic wills recognized in some states and rejected in others, witness rules that differ, and self-proving affidavits a second state may not accept, which turns a routine admission into one needing witness testimony.
Nine states treat most property acquired during marriage as owned equally by both spouses. When a couple moves to a common law state, assets acquired while domiciled in the community property state generally retain their community character, and most receiving states recognize that character for purposes of division and inheritance. Several states have adopted uniform legislation on the disposition of community property at death.
Every state offers some abbreviated procedure for estates below a threshold: a small-estate affidavit allowing a successor to collect assets by sworn statement, a summary administration for modest estates, or a simplified process for a surviving spouse. Thresholds, waiting periods and the assets covered vary widely, and some states apply their small-estate procedures to real property while others do not.
The domiciliary administration of an estate takes place where the decedent was domiciled and governs personal property wherever located. Real property is governed by the law of the state where it sits, and transferring title generally requires a proceeding there. Ancillary administration is that second proceeding: shorter and confined to the local assets, but a separate case with its own filings and its own fiduciary appointment.
A personal representative or trustee acting in a state other than their own is frequently required to post a fiduciary bond and to appoint a resident agent for service of process. The bond is an insurance instrument protecting beneficiaries and creditors against loss, priced on the value of the assets and the fiduciary's credit. Wills commonly waive bond, and some states honor the waiver while others require a bond from a non-resident regardless.
States differ on whether a non-resident may serve as personal representative. Most permit it, some require the appointment of a resident agent for service of process, some require a bond that a resident would not have to post, and a small number restrict non-resident appointments to relatives of the decedent or require a resident co-representative.
The law governing a trust's validity and construction is generally the law the settlor designated, or failing that the law of the state with the most significant relationship to it. The place of administration is where the trustee conducts the trust's business, which affects court supervision, reporting duties and trustee powers.
An estate without a will is divided under intestacy statutes rather than under any instrument, and two different rules select which statutes apply. Personal property is distributed under the law of the state where the decedent was domiciled at death, wherever the property is held. Real property is distributed under the law of each state where it sits.
Where an estate is administered in a domiciliary proceeding and an ancillary one, each proceeding runs its own creditor process against the assets it controls. Notice requirements, claim periods and the consequences of missing them are set by each state separately, and a claim barred in one may still be timely in the other. Local creditors are generally paid from local assets before any surplus is remitted to the domiciliary estate.
Real property passes on death under the law of the state where it is located, not under the law of the decedent's domicile. That governs who takes it on intestacy, what formalities a will must satisfy to devise it, what spousal protections apply, whether creditors can reach it and how title is cleared. The domiciliary state governs personal property wherever located, so a single estate can be divided under two schemes at once.
A transfer-on-death or beneficiary deed lets an owner name who receives real property at death while retaining full ownership and the power to revoke during life. It is recognized in a substantial and growing number of states and not in all of them, and because land is governed by the state where it sits, the only question that matters is whether that state recognizes the instrument.
