CONTRIBUTED CONTENT: You own property in another state? Your estate plan better be prepared

Plenty of Idahoans own real property elsewhere. A cabin on a lake in Montana. A condo in Arizona for the winter. A piece of hunting ground just across the border in Washington or Oregon. It's easy to think of these as just another asset covered by your Idaho will. Unfortunately, it usually isn't that simple.

If you own real estate in another state when you die, your family may have to go through probate twice — once in Idaho, and again in the state where the property sits. This second process is called ancillary probate, and it can catch families completely off guard and cost thousands more than anyone expected.

Why Probate Follows the Property, Not the Person

Probate exists to transfer legal title to real property, and each state controls the process for transferring title to land within its own borders. Your Idaho will can be filed in Idaho, and the Idaho court can oversee the distribution of your Idaho assets, but it generally has no authority to transfer title to real estate sitting in another state.

That means your executor may need to open a second, separate probate case in the state where the out-of-state property is located, following that state's rules, deadlines, and often hiring a local attorney to handle the whole process there.

Why Ancillary Probate Is a Problem

Ancillary probate isn't just an inconvenience. It typically means:

• A second set of court costs and attorney fees, on top of what's already being spent in Idaho

• A second timeline, which can significantly delay when heirs actually receive clear title to the property

• Coordination between two courts, since the ancillary case usually can't finish until certain matters in the primary Idaho probate are resolved, and the primary probate can’t typically be closed until the ancillary probate is wrapped up

• Different state laws, including different rules about creditor claims, spousal rights, or estate taxes, which may apply to that out of state property regardless of what Idaho law says

For a family already grieving a loss, dealing with two probate proceedings in two states is an unwelcome surprise, and one that's entirely avoidable with the right planning. I’ve seen scenarios where probates were required in six states!

How to Avoid It

The good news is that ancillary probate is one of the more preventable estate planning problems. Common solutions include:

Placing the property in a revocable living trust. Because a trust holds legal title to the property during your lifetime, there's no probate needed anywhere when you pass away — the trustee simply distributes or manages the property according to the trust terms, regardless of which state it's in. This is almost always the simplest, most fool proof and most cost effective solution to this issue.

Using a transfer-on-death deed, where available. Some states allow real estate to pass directly to a named beneficiary through a deed recorded during your lifetime, bypassing probate entirely. Not every state offers this option (Idaho currently does not), and the rules vary when it is available, so this needs to be confirmed for the specific state where your property sits. It also doesn’t always offer the best way forward due to serious restrictions on who can be named as the beneficiary and what rules can apply to the transfer.

Joint ownership with rights of survivorship. In some cases, adding a co-owner with survivorship rights can allow property to pass automatically, though this comes with its own tradeoffs around control, liability, and gift tax exposure that are worth discussing with your attorney first. This works well when we are only concerned about transfer from one spouse to another when the first death occurs, but this approach is rarely the best in any other situation – like passing property to kids or grandkids.

One Property, One Plan

If you own real estate outside of Idaho, it's worth a specific conversation with your attorney about that property, rather than assuming your general estate plan has it covered. Often the fix is as simple as retitling the property into a trust you already have — but that step has to actually happen. A trust document sitting in a drawer does nothing for property that was never transferred (retitled through a recorded deed) into it.

Take stock of everything you own, wherever it sits, and make sure your estate plan accounts for all of it. Your family will thank you for the extra probate case they didn't have to open.

This post is part of an ongoing series on estate planning topics relevant to Idaho families. Consult with a licensed Idaho attorney regarding your specific situation.

My law firm is currently offering free telephonic, electronic, or in-person consultations concerning creating or reviewing estate planning documents, special needs trusts, adult guardianships, and probates.

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Robert J. Green is an Estate Planning, Probate, Elder Law, Trust, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Kootenai Law at 208-765-6555, [email protected], or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.