Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
When a Delaware resident dies owning an interest in property located in another state, that interest generally must pass through the probate system where the property sits. However, if all heirs agree and the asset qualifies under the foreign jurisdiction’s small-estate procedures, you may avoid a full ancillary probate. Below are the key steps under Delaware law and common out-of-state practice.
- Gather Core Documents
Obtain a certified copy of the decedent’s death certificate and, if applicable, the will. In Delaware, you will also need a certified copy of the Letters Testamentary or Letters of Administration (proof of your appointment as personal representative) issued by the Register of Wills (12 Del. C. § 1301).
- Obtain a Certificate of No Administration or Rights of Succession
Under Delaware’s small-estate procedure (12 Del. C. Ch. 19), you can request a Certificate of No Administration or a Certificate of Rights of Succession if the decedent’s Delaware personal estate falls below the statutory threshold. This certificate evidences heirship and shows there is no formal Delaware probate.
- Check the Foreign State’s Small-Estate Rules
Each state has its own small-estate affidavit process (often capped at a certain dollar value of personal property). Review the probate code or estates statutes in the jurisdiction where the real estate or personal property sits. If the property interest meets that state’s small-estate limit, you can prepare the required affidavit rather than open a full ancillary probate.
- Prepare and Record a Deed or Affidavit of Transfer
If the out-of-state asset is real property, prepare a deed transferring the interest from the decedent’s estate to the heirs. Attach the foreign-state small-estate affidavit or ancillary-probate court order. File and record the deed in the county recorder’s office where the land lies.
For intangible assets (bank accounts, stocks) located out of state, submit the small-estate affidavit directly to the financial institution along with the Certificate of No Administration or the ancillary court order.
- Pay Applicable Fees and Taxes
Most jurisdictions charge recording fees for deeds and may impose a small-estate filing fee. Confirm local fee schedules and any transfer or inheritance taxes.
If the property interest exceeds the small-estate threshold or the state does not offer an affidavit process for real property, you must open a limited ancillary probate in the foreign jurisdiction. That process mirrors full probate but is limited to assets located in that state.
Helpful Hints
- Verify small-estate thresholds in the jurisdiction where the property is located; they vary by state.
- Use the Delaware Certificate of No Administration to show no formal Delaware probate exists.
- Obtain certified court documents rather than photocopies to avoid recording rejection.
- Consider engaging local counsel in the state where the property lies if you encounter complex title issues.
- Track recording deadlines; some states require transfer within a set period after death.