Many Georgia residents own real estate that is located in another state. The property might be a vacation home, rental real estate, a home that has been in the family for generations, or a future retirement home. Whatever the purpose might be for maintaining ownership of out of state real estate, families are often faced with unforeseen complications when the owner of the out of state property dies.
Unless the real estate is owned in a way that passes title outside of probate to a surviving owner, it will be necessary to file for probate in the other state. This “ancillary” probate will be in addition to the probate filed in Georgia. While Georgia probate is relatively straightforward, there are many “gotchas” for Georgia residents filing for an ancillary probate in other states.
For example, states differ on whether a nonresident can even be appointed as Executor. Florida and Kentucky allow a nonresident to serve as Executor only if that person is legally related to the deceased.
Some states, such as Virginia, require a nonresident Executor to post bond, even if the deceased’s Will waives the bond requirement. In Tennessee, a nonresident can serve as Executor only if there is also an in state Co-Executor and the nonresident appoints the secretary of state as agent to accept legal papers. The Tennessee probate court may also require the nonresident executor to post bond even if the Will waives that requirement.
Given the potential drawbacks of having to probate for real estate owned by a Georgia resident outside of Georgia, it is important to understand what the laws are of the state where the real estate is located. It may be that an ancillary probate in that state would not impose any great difficulty. But if there is a chance that problems might occur, it would make sense to either title the non Georgia real estate so that it passes outside of probate, or to create a trust and title the non Georgia real estate in the trust.
It can be complicated to try and navigate these issues alone, and that’s why it’s important to have an Estate Plan in place before an unexpected death occurs. If you want support in creating the right plan for your needs, do not hesitate to reach out to the Estate Planning Law Group of Georgia either by calling 770-822-2723 or contacting us through our website.
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