In some cases, knowing where to file for probate is pretty straightforward. The decedent in question may have lived in one location and held all of their personal property and assets in this same location as well. However, thanks to capitalism, technology, and other numerous factors, there are more opportunities and advantages to owning property in more than one place. This can make it a little trickier to determine where a Will should be probated. Can a Will be probated in another state? Keep reading to understand when a Will should be probated in more than one state, and how to make this determination.
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Can a Will be probated in another state?
The question of where a Will can be probated largely depends on the physical location of property belonging to an estate. Physical property, such as real estate or automobiles, is governed by the state in which it is located or registered, and by the state in which the decedent lived.
This means that a Will may be probated in a different state if the decedent lived in one state but owned property in a different state. In this case, the Will may need to be probated in both states, save for certain exceptions.
Probating a Will in a second, third, or even fourth state is known as an “ancillary probate” process. The term ancillary means “to support a primary process,” which indicates that ancillary probate is a secondary process that does not replace a primary probate proceeding. Thus, a primary probate (in this case known as “domiciliary” probate) will always take place in the state where the decedent lived. A secondary probate may take place if they owned property in a different state..
Where is a Will probated?
To clarify, a Will is probated in the county and state in which the decedent domiciled. A domicile is a person’s permanent and established place of residence, and there can only be one. For most individuals who lived in just one place, their domicile is easy to determine — it’s where they passed away.
Determining a domicile can get a little trickier for individuals who split their time between several homes in different locations. Even if they considered each of their homes as a home base, establishing their domicile is important for estate administration and tax purposes. It is in this domicile in which their Will should be filed for primary probate.
The next section will provide tips on how to determine a decedent’s domicile, and thus where to file probate.
How to determine where to file probate
Determining where to file probate is usually straightforward. If the decedent only had one home when they passed away, then the county and state in which this home is situated is their domicile and where probate should be filed.
What if, however, the decedent split their time evenly between more than one location? Perhaps they spent 6 months of the year in their condo in the Upper East Side of Manhattan and the other 6 months in their Miami villa. In this case, it can take a little more work to determine whether their domiciliary state was New York or Florida, and thus where to file probate.
To establish a decedent’s domicile, ask yourself the following questions:
Where did the deceased person reside?
The first step is to determine where the decedent lived, for all intents and purposes. There are several hints that will clue you in:
The state in which they were registered to vote
The home they had most of their mail addressed to
The state that issued their driver license
Where they filed their state taxes
Where their business entity is registered (if applicable)
Where most of their immediate family members live
Even if the decedent split their time evenly between two or more locations, their primary residence or domicile may be surprisingly clear on paper. This is likely where the Will should be filed for probate.
Next, you can determine secondary locations in which the decedent may have owned property. If they owned homes or property interests in any other states, then ancillary probate proceedings in these other states may be required.
What are the probate laws in the state where the deceased passed?
Laws that govern probate proceedings vary from state to state. These differences can be critical in the absence of a Will, in which case state laws define how inheritances are distributed. When a Will is in place, then these differences are typically less critical.
Thus, it’s important to determine where the decedent had a Will, as well as to review state laws surrounding probate before moving forward.
When there is no Will, property is distributed through intestate succession laws. Typically, the surviving spouse is the first to inherit property. However, state laws can create variances in such outcomes:
Whether the decedent lived in a community property or equitable distribution state
Whether property is owned together through joint tenancy (with right of survivorship) or tenants in common, and whether spouse is on the deed
Whether the decedent had children from most recent marriage or prior relationships
The size of the decedent’s estate also matters. Many states offer a threshold; estate valued under the state threshold can avoid probate by settling through small estate affidavits or transfer on death deeds. However, these thresholds vary from state to state.
Where are tangible assets located?
The location of tangible assets belonging to the decedent also impact the location of where probate can be filed.
If you’re wondering what tangible assets are, they are physical items that you can hold in your hands or touch. This includes real estate and vehicles, as well as personal property such as artwork and jewelry.
Real estate and tangible personal property must be probated in the county and state in which they are physically located, registered, or titled.
One exception is if the decedent owned property in more than one county within the same state. If this were the case, then the estate should be probated in the county that the decedent lived in at the time of their passing. Again, be sure to verify your state’s probate laws, as the treatment of tangible property in multiple counties within the same state can vary. However, this is usually the case.
Is there property in more than one state?
Next, determine whether the decedent owned property located in more than one state. The Executor of the estate may have to file for probate in more than one state if the decedent owned physical property in multiple states.
Probate courts do not have jurisdiction of property physically located or registered in other states. Common examples of such property include vacation homes, oil rights, cars, boars, and interest in a family property. If this is the case, then an ancillary probate must be filed in the state in which the property is located or held. This takes place in addition to the domiciliary probate.
Luckily, filing for ancillary probate is a little easier than domiciliary probate. Because the domiciliary state’s probate court has already accepted the Will and appointed the Executor, then a court from another state will automatically accept the Will and authorizations provided to the Executor.
Are there intangible assets at play?
Last but not least, determine whether the decedent possessed any intangible assets, and whether they impact the location of where probate should be opened.
Intangible assets are assets that cannot be touched or held. Examples include patents, copyrights, bank accounts, and digital assets. Thanks to digitization and the constant modernization of technology, the number and value of intangible assets owned by the everyday person are ever-increasing. Thus, intangible assets should be a major estate planning consideration.
If a decedent’s estate consists solely of intangible assets, then probate can be filed in the decedent’s domiciliary state and county. However, laws pertaining to intangible assets can be complicated, so be sure to review your respective probate laws to determine how to proceed.
How to avoid probate complications
When an individual passes away today, their portfolio of personal assets and belongings likely looks so much more diverse and complicated than that of someone who passed away, say, fifty years ago. Some of this is thanks to technology and capitalism making the world much smaller in many ways. Estates often include property assets held in a number of locations and thus require probate in more than one state. For more guidance on ancillary probate, be sure to read our guide here.
Now, you may be wondering how to make a complicated matter as straightforward as possible. It’s important to rewind and start at the beginning: the Estate Plan. Before an individual passes away, they have an opportunity to prevent probate complications by putting an Estate Plan in place. Not only can they help prevent complications and headaches for their loved ones, there are strategies available to avoid probate altogether.
At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help. Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.
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