Jurisdictional Issues and Ancillary Probate

Increase in the Use of Trusts

In the last several years, there has been significant growth in the use of trusts, usually revocable living trusts in estate planning to transfer family assets to family or other beneficiaries.  A big reason for using these trusts is to attempt to avoid probate disputes and the expenses and time delay which are often associated therewith.  In the same time period, Americans have become much more mobile and move often and sometimes have more than one residence.

Which Court Will Have Jurisdiction?

The bottom line is that it is frequently difficult to determine what court will have jurisdiction over trust disputes if and when they develop.When it is determined which Court is appropriate, the next question becomes what state’s laws apply in interpreting the trust, if there is a dispute.

Trust jurisdiction and where to have a trustee’s actions reviewed are somewhat unsettled areas of the law and in some case require a complicated analysis, based to some degree on what is called ‘choice of law’ legal authority.  In many cases, the decisions relating thereto are very fact intensive and depend on the individual case circumstances.

A Closely-Related Subject Is Ancillary Probate

When a person dies, their state of residence has jurisdiction over their estate.  Ordinarily, this is the state where a probate is most likely filed.    The state or residence is also ordinarily where all or most of the decedent’s property is located.  If the decedent, however, owns property or assets in other states, in this case Arizona or any other states, ancillary probate is an additional process designed to facilitate the transfer of the out-of-the state property to the heirs without requiring a full-blown probate proceeding in Arizona.  In the proceeding, there is proper coordination with the personal representative in the state where the primary probate action has been filed.  It is important to note that in general the ancillary probate laws that apply to real estate property depend on where the property is located, not the laws of the state where the deceased person died.  The most common situation in which ancillary probate is necessary is when the deceased person owned a vacation home in a different state at the time of death. Ancillary probate also applies to other assets, such as vehicles titled in a different state.

Contact the Law Offices of William D. Black

If you have questions regarding jurisdictional issues in trust or probate proceedings or if you wish to discuss your particular fact situation, we can be reached at 602 265-2600 or you can fill out our online contact form. Put our years of experience and expertise to work for you regarding your inheritance questions and disputes.