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How Should I Plan My Out-of-State Real Estate Upon Death?

Stephanie C. Smith

In Virginia, most people’s estates are probated in the city or county in which they lived at the time of their death. For Virginia residents who pass away owning real estate outside of Virginia, probate matters can be significantly more involved. Often, the executor or administrator handling the decedent’s estate will be required to proceed with a probate in Virginia, as well as an ancillary administration in the city/county and state where the out-of-state real property is located.

An ancillary administration in another estate often necessitates hiring a local attorney to assist. Probate rules and requirements differ from state to state and can be very difficult for executors and administrators to navigate without professional assistance. Specific paperwork from the primary probate in Virginia is usually required to initiate the ancillary administration, and probate filing requirements vary thereafter. Additionally, if the decedent died without a Will, the out-of-state property would be conveyed according to the other state’s intestacy laws, which may dictate a different division of property than Virginia’s intestacy law and may not be what the decedent would have intended.

To avoid an ancillary administration for real estate in another state, a person owning property out of state can create a revocable living trust in Virginia and transfer the out-of-state real property to the trust. Once the property is effectively transferred to the trust, the real property is no longer owned in the name of the decedent and would not require an ancillary probate administration in the state where the property is located.

If you or a local family member or friend owns a vacation property or other real estate in another state, you or your family member or friend should consider all options available to facilitate and simplify the transfer of such property at death, including creating a revocable living trust with the assistance of an experienced estate planning attorney.

Stephanie C. Smith

Written By Stephanie C. Smith


Stephanie C. Smith is a Shareholder in the law firm of Midgett Preti Olansen. Her practice areas include estate planning, estate and trust administration, and business matters. Additionally, Ms. Smith serves as a Commissioner of Accounts for Virginia Beach Circuit Court.

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