Ancillary Probate for Escondido Land Owners

My client, Barry, was devastated. He’d meticulously updated his estate plan, including a codicil leaving his small vineyard in Escondido to his son. Unfortunately, Barry passed away while maintaining a primary residence in Oregon. His son discovered the codicil was deemed invalid in California because it wasn’t properly witnessed under Oregon law, costing the estate over $30,000 in legal fees just to untangle the mess and ultimately probate the property here. This highlights a common, often overlooked issue for California property owners who reside elsewhere: ancillary probate.

As an Estate Planning Attorney and CPA with over 35 years of experience here in Escondido, I routinely advise clients with out-of-state primary residences about these potential complications. It’s more than just having a will; it’s ensuring it’s enforceable in California when you own property here. The goal isn’t simply to avoid probate altogether, but to minimize its cost and complexity when it becomes unavoidable. Being a CPA allows me to look beyond the legal document and into the tax implications—a crucial step often missed by attorneys lacking that financial expertise. Understanding the potential for a step-up in basis, capital gains considerations, and proper property valuation is critical to protecting your family’s inheritance.

What is Ancillary Probate and Why Does It Matter?

Essentially, ancillary probate is a separate probate proceeding opened in California for the portion of your estate that consists of California real property. This happens when you, as a non-California resident, die with real estate located within the state. The primary probate proceeding would occur in your state of residence (Oregon, in Barry’s case), but ancillary probate is required here to transfer ownership of the California property.

The reason this is significant is that it doubles the legal fees, court costs, and administrative burden. You’re essentially going through the probate process twice – once in your home state and again in California. This can quickly erode the value of the estate, particularly if the property isn’t particularly large or liquid assets are limited.

How Does Ancillary Probate Differ from Regular Probate?

While the fundamental process is similar – validating the will, identifying assets, paying debts, and distributing remaining property – ancillary probate is generally streamlined. The California court doesn’t need to determine the overall validity of the will; it simply acknowledges the order issued by the primary probate court in your home state. However, California law still applies to the transfer of the real property itself.

One area where things can get complicated is with the size of the estate. For deaths on or after April 1, 2025, a Petition for Succession under AB 2016 (Probate Code § 13151) may be available if the primary residence is valued up to $750,000. However, remember this is a Petition that requires a Judge’s Order, NOT an Affidavit. It’s crucial to note that to qualify, the decedent’s other non-real estate assets must typically remain below the separate $208,850 Small Estate limit. If the estate exceeds these limits, a full ancillary probate will be necessary.

What Steps Can I Take to Avoid or Simplify Ancillary Probate?

• Strong>Titling & Ownership: Properly titling your California real estate in a trust is the most effective way to avoid ancillary probate. A Revocable Living Trust allows the property to pass directly to your beneficiaries without court intervention.
• Strong>Pour-Over Will: Even with a trust, a “pour-over” will is essential. This ensures any assets inadvertently left outside the trust at the time of your death are “poured over” into the trust and distributed according to its terms.
• Strong>Coordinate Estate Plans: If you have property in multiple states, it’s critical to coordinate your estate plans across those states. Consult with attorneys in each state to ensure consistency and avoid conflicts.
• Strong>Review and Update: Estate plans aren’t “set it and forget it” documents. Laws change, and your circumstances evolve. I recommend reviewing your plan every 3-5 years, or whenever there’s a significant life event.

What if I’m Spending More Time Out of State?

Many of my clients become “snowbirds” or divide their time between California and another state. It’s a common misconception that simply spending less than 183 days in California automatically terminates residency; the FTB uses the ‘Closest Connection’ test (evaluating 19 factors like your primary doctor and social ties) to determine domicile. If the Franchise Tax Board (FTB) determines you are still a California resident, even if you’ve moved your primary residence, your estate will likely be subject to California probate, even if you die elsewhere.

During a tax audit, auditors will use Form 4600 (Residency Questionnaire) to scrutinize your life, including the location of your dentist, the registration of your pets, and where you keep your safe deposit boxes.

Protecting your family’s legacy requires proactive planning and a thorough understanding of the legal landscape. Don’t let a preventable mistake like an improperly executed codicil cost your heirs tens of thousands of dollars. Let’s work together to ensure your California property passes seamlessly to those you love.

Solving the immediate legal issue is only the first step; ensuring your foundational documents hold up in court is the next.

As a dual-licensed CPA and Attorney, I warn clients that specific asset strategies are useless if the core Will fails to meet probate standards.

To protect your family from unnecessary conflict, you must understand how judges evaluate the enforceability of your Will:

What does a California probate court look for when interpreting testamentary intent?

In California, a last will and testament operates within a probate system that emphasizes intent, clarity, and procedural compliance. When properly drafted, a will does more than distribute property—it creates legally enforceable instructions that guide courts, fiduciaries, and beneficiaries through administration with fewer disputes and less uncertainty.

Final Stage	Factor
IRS	Address debts and taxes.
Payout	Manage property distribution.
Heirs	Protect inheritance rights.

For California residents, understanding how intent, authority, and compliance interact is one of the most effective ways to protect family harmony and estate integrity. A will that anticipates probate scrutiny is far more likely to be honored as written and far less likely to become the source of unnecessary conflict.

Controlling Legal Standards for Establishing Domicile and Residency

• Residency Guidelines: FTB Pub 1031 (Guidelines for Determining Resident Status)
  This is the primary resource for the “Closest Connection” test. In 2026, it details how the FTB evaluates 19 factors—including the location of your healthcare providers and social ties—to determine if your presence in the state is “permanent” or merely “transitory.”
• Voter Registration: California Secretary of State – Voter Registration
  Updating your voting address is a critical indicator of intent. For the June 2, 2026, Primary Election, the deadline to register online is May 18, 2026. This serves as a public declaration of your primary home.
• Federal Estate Tax: IRS Estate Tax Overview
  While domicile determines state tax, this resource outlines federal guidelines. It reflects the 2026 OBBBA update, which permanently set the federal estate tax exemption at $15 million per person ($30 million for couples), indexed for inflation.
• Proof of Residency: California DMV – REAL ID Checklist
  Since the federal enforcement deadline passed in 2025, a REAL ID is mandatory for domestic flights. This page lists the specific residency documents (e.g., utility bills, tax returns) that the state accepts as proof of a permanent California address.

Attorney Advertising, Legal Disclosure & Authorship ATTORNEY ADVERTISING. This content is provided for general informational and educational purposes only and does not constitute legal, financial, or tax advice. Under the California Rules of Professional Conduct and State Bar advertising regulations, this material may be considered attorney advertising. Reading this content does not create an attorney-client relationship or any professional advisory relationship. Laws vary by jurisdiction and are subject to change, including recent 2026 developments under California’s AB 2016 and evolving federal estate and reporting requirements. You should consult a qualified attorney or advisor regarding your specific circumstances before taking action. Responsible Attorney: Steven F. Bliss, California Attorney (Bar No. 147856). Local Office: Escondido Probate Law 720 N Broadway 107 Escondido, CA 92025 (760) 884-4044 Escondido Probate Law is a practice location and trade name used by Steven F. Bliss, Esq., a California-licensed attorney. About the Author & Legal Review Process This article was researched and drafted by the Legal Editorial Team of the Law Firm of Steven F. Bliss, Esq., a collective of attorneys, legal writers, and paralegals dedicated to translating complex legal concepts into clear, accurate guidance. Legal Review: This content was reviewed and approved by Steven F. Bliss, a California-licensed attorney (Bar No. 147856). Mr. Bliss concentrates his practice in estate planning and estate administration, advising clients on proactive planning strategies and representing fiduciaries in probate and trust administration proceedings when formal court involvement becomes necessary. With more than 35 years of experience in California estate planning and estate administration, Mr. Bliss focuses on structuring enforceable estate plans, guiding fiduciaries through court-supervised proceedings, resolving creditor and notice issues, and coordinating asset management to support compliant, timely distributions and reduce fiduciary risk.