THE OTHER PROBATE: AN EXPLORATION OF ANCILLARY PROBATE
by Barry Whalen, ATG Law Clerk

Ancillary probate is an often confusing and overlooked procedure. The question of whether to administer ancillary probate arises when a decedent has land in a state other than the domicile. When this situation occurs there are several laws and procedures that affect the passing of title to real estate. In most states when a decedent dies testate, the person named executor or person in custody of the will has a duty to admit the will to probate. 755 ILCS 5/6-3; Wis. Stat. § 856.05; IC 29-1-7-3.

However in the above situation, it is often unclear whether the executor is required to admit the will to probate in the state of the domicile or also in the state where the land is located. In Illinois and most other states, a will does not pass title to real estate until it is admitted to probate. 755 ILCS 5/4-13; IC 29-1-7-24. Further, Sections 5-1 and 5-2 of the Illinois Probate Act (the act) state that the will of a nonresident decedent, if probated in Illinois, should be admitted in the county where the majority of the real estate is located (in Indiana, the will can be probated in any county where property was located) 755 ILCS 5/5-1, 2; IC 29-1-7-1.

Therefore, if a nonresident decedent owns land in Illinois and dies testate, for the will to pass the title to the land, the will must be admitted to probate in the county where the majority of the land is located. This article will discuss ancillary probate procedures in Illinois, Indiana, and Wisconsin.

Ancillary Probate to Satisfy Claim of Creditor

After a foreign will has been admitted to probate, full ancillary probate can be avoided in many situations. However, when there is a creditor in the state of situs of the property, full ancillary administration is necessary to satisfy this claim. When a decedent has land in a state other than the domicile, the law of the situs of the land will govern all instruments affecting the title to the land. Sternberg v St. Louis Union Trust Co., 394 Ill 452, 68 NE2d 892, 169 ALR 545 (Ill 1946). Therefore if there is a creditor to an estate in the same state of situs of the property, then the laws of that state govern the satisfaction of the claim of the creditor. See generally Ramsay v Ramsay, 97 Ill App 270 (4th D 1901).

Section 7-2 of the act states that the "procedure for the admission to probate of a domestic will governs the procedure for the admission to probate of a foreign will." 755 ILCS 5/7-2. Thus, follow normal probate procedures to administer the ancillary probate and satisfy the claims of the creditors.

Transferring Title to Nonresident Real Estate through Ancillary Probate

If there are no creditors in the state of situs of the property then full ancillary probate is not mandatory, however it can be used for clearing and transferring the title to real estate. Martin v Central Trust Company of Illinois, 327 Ill 622, 159 NE 312 (1927). As stated earlier, in Illinois a will does not pass title to real estate until it is admitted to probate. 755 ILCS 5/4-13. Therefore if a nonresident dies with a will that conveys land in Illinois, a full ancillary probate can be administered to convey title to the real estate.

Once the foreign will is admitted to probate, Illinois statute allows for certain procedures that can be followed to avoid full ancillary administration but still convey title to real estate. Summary administration described in Section 9-8 of the act states that if a will has been probated in another state, any interested person can petition for a summary administration.

For summary administration to be granted, the following conditions must be met: (1) the value of the estate in Illinois cannot exceed $100,000; (2) all claims known to the petitioner must be paid or listed in the petition; (3) taxes must be paid; (4) if there is a surviving spouse or child, he/she must be listed; (5) all legatees and heirs must consent in writing to summary administration; (6) all distributees must give a bond equal to the amount of their share and expenses in case a prior claim is later brought; and (7) the petitioner must give notice of the petition informing all persons of the death of the decedent by publishing the notice once a week for three consecutive weeks in a newspaper in the county where the petition was filed. 755 ILCS 5/9-8. If all these requirements are met, the court can direct the administration of the estate without issuance of letters and title to real estate can be conveyed.

There is one major problem with summary administration: For a petition for summary administration to be granted, the act requires notice be given. 755 ILCS 5/9-8. The act further states that summary administration does not preclude a claimant from enforcing a claim in any manner provided by law. 755 ILCS 5/9-8. Because claims can be brought against the estate after summary administration has concluded, the act requires bonds from the beneficiaries as stated above. This may not be a major problem for wealthy beneficiaries, but for others, the bonds and possibility of future claims can be a burden they are not willing to bear.

Transferring Title to Nonresident Real Estate without Ancillary Probate

Another way to avoid full ancillary administration and to transfer title to Illinois real estate belonging to a nonresident decedent is through the procedures outlined in Section 22-4 of the act. Section 22-4 states that if a representative is appointed to the estate of a nonresident decedent in another state, then that representative can petition to sell the decedent's real estate located in Illinois. 755 ILCS 5/22-4. The petition must contain the following: (1) a copy of his or her letters authenticated within 60 days before the date of presentation; (2) an authenticated copy of the order of the court that issued letters authorizing him or her to apply to an Illinois court for leave to lease, sell, or mortgage the property; (3) an authenticated copy of any bond required by the court that issued letters; and (4) an authenticated copy of the order of the court that issued letters, approving any bond required to be filed. 755 ILCS 5/22-4. If the petition is granted then the practice and procedures for a domestic representative selling real estate in Illinois must be followed.

Similar to Section 22-4, Section 22-6 of the act allows a foreign executor to sell real estate in Illinois if certain procedures are followed. The act states that where an executor to whom letters of office were issued in another state is granted the power to sell real estate by the will, the executor can sell the real estate in Illinois as long as the will has been admitted to probate in the proper Illinois county. 755 ILCS 5/22-6. The above two procedures share a common pitfall: In both cases, the will is admitted to probate and the title thus vests in the devisees, however the procedures do not foreclose the possibility of future claims by creditors. The procedures are effective only as long as letters are not issued in Illinois. 755 ILCS 5/22-5, 6. If an interested person brings a claim and is issued letters, then the appointed "resident representative shall be substituted as petitioner in the proceedings, which shall be heard and determined as if originally instituted by the resident representative and the benefits of the judgment or order shall inure to him and are assets in his hands." 755 ILCS 5/22-5. While the language in Section 22-5 applies only to Sections 22-3 and 22-4, Section 22-6 still contains the same caveat that no letters can be issued in Illinois for the procedure to be effective. Because of this problem, these two procedures are often used in conjunction with title insurance to protect the title holder from future claims.

Ancillary Probate Procedure

The actual procedure of ancillary probate is not much different than the procedure for a domestic probate. The act states that "the procedure for the admission to probate of a domestic will governs the procedure for the admission to probate of a foreign will." 755 ILCS 5/7-2. The act further states that a foreign will "may be admitted to probate in this State when (a) the will has been admitted to probate outside of this State or (b) the will was executed outside of this State in accordance with the law of this State, of the place where executed or of the testator's domicile at the time of its execution." 755 ILCS 5/7-1.

The only procedure that differs between ancillary probate and domestic probate is the method of proving the foreign will. A foreign will can be proven in Illinois by a copy or as an original will. To prove the will by copy, the act states that "[a] written will admitted to probate outside of this State is sufficiently proved to admit it to probate in this State by introducing in evidence an authenticated copy of the will and the probate thereof." 755 ILCS 5/7-3. For there to be original proof of a foreign will, the act requires that will be proven in the manner provided in the act if the will was executed outside this state in accordance with the act. 755 ILCS 5/7-4. Similarly, the act states that if the will was executed outside Illinois in accordance with the laws of the place where it was executed, it must be proven in Illinois in accordance with the law of the place where it was executed. 755 ILCS 5/7-4. Thus, Section 7-3 offers a shortcut to the normal procedure of proving a will if the will has been admitted to probate in another state. Otherwise, the same procedure for proving a will in domestic probate will be necessary for original proof of a foreign will unless the foreign will was executed in accordance with laws other than that of Illinois.

Indiana Ancillary Probate
In Indiana a will of a nonresident decedent does not affect the title of real estate the decedent owns in Indiana unless the will is admitted to probate in Indiana or is filed and recorded as a foreign will in accordance with Indiana statute. The Indiana Probate Code states that "[a]ny will that has been proved or allowed in any other state or in any foreign country, according to the laws of that state or country, may be received and recorded in this state within three (3) years after the decedent's death." IC 29-1-7-25. If the county court is satisfied that the document ought to be allowed as the will of the deceased, the court will order it to be filed and recorded by the clerk; and, then, the will has the same effect as if it had been originally admitted to probate and recorded in Indiana. IC 29-1-7-27. After the foreign will is recorded then the title to the real estate passes according to the will. Along with the procedure described above, a will of a nonresident decedent can be admitted to probate in Indiana, in which case normal Indiana probate procedures are followed to handle claims against the estate and other probate matters.

Wisconsin Ancillary Probate
The laws governing ancillary probate in Wisconsin are very similar to those in Illinois. While there is no direct authority in the state of Wisconsin, several cases and articles point to the conclusion that title to real estate in Wisconsin passes according to the law of the situs of the land. Gary E. Sherman, Wisconsin Practice Series, Part III Chapter 28.56. In Wisconsin and most other states, in the absence of statute, title to real estate can be administered only by an administrator appointed by the state of the situs of the land. Restatement Conflicts § 487. Therefore, ancillary probate in Wisconsin is necessary to administer the title of real estate located in Wisconsin unless a statute states otherwise. Gary E. Sherman, Wisconsin Practice Series, Part III Chapter 28.56.

In Wisconsin there are two statutes that would permit the transfer of title to real estate of a nonresident decedent without full ancillary probate. First, Wis. Stat. § 868.05 provides that when a foreign will devising Wisconsin land is proved in such other state and six years have passed since the decedent's death, the county court in which any of such land is situated may, upon petition accompanied by an authenticated copy of such will and its probate, issue a certificate of assignment. Thus, title would pass without full ancillary proceedings.

The second procedure is found in Wis. Stat. § 877.16, which states that where "no personal representative has been appointed in this state for the estate of any decedent who was not a resident of this state at the time of his or her death, a foreign personal representative of the decedent, upon filing the original, or a certified copy of the original, appointment in any circuit court in this state, may exercise any power over the estate." This procedure is very similar to Sections 22-4 and 22-6 of the Illinois Probate Act. Therefore, it may be necessary to obtain title insurance to assure the title to the real estate. Further information on Wisconsin ancillary probate procedure can be found at Wis. Stat. §§ 868.01, 868.03, 868.05.

Conclusion

While ancillary probate may be a cumbersome procedure, as demonstrated there are several shortcuts that can be taken to achieve a similar effect. The important factors to consider when determining whether to pursue one of these shortcuts are the likelihood that creditors will make a claim against the estate in the future and the statutory procedures required in the given state to probate a foreign will. With these two factors in mind, ancillary probate (or avoidance thereof) can be a routine procedure that is effective and useful.

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