How to Handle a Dual State Residency for Will Probate

By Terry White

Where you live is important when you die. The opening sentence of a will is usually a good indicator of your state of residence. You’re probably familiar with the words: "I, (Your Name), (Your Street Address, City and State), being of sound mind and body, hereby declare this my Last Will and Testament.” But in our increasingly mobile society, determining a person’s home base for probate purposes is becoming more and more complicated.

Where you live is important when you die. The opening sentence of a will is usually a good indicator of your state of residence. You’re probably familiar with the words: "I, (Your Name), (Your Street Address, City and State), being of sound mind and body, hereby declare this my Last Will and Testament.” But in our increasingly mobile society, determining a person’s home base for probate purposes is becoming more and more complicated.

Two Homes, Two States

There are many reasons for dual residency. Retirement, employment, taxes, family or even medical reasons can make a two-home life more convenient. A person’s state of residence affects many facets of probate, including property rights, validity of the will, rights of the beneficiaries and estate taxes. Residency determines which jurisdiction will probate the will and which state laws govern the distribution of the estate’s assets. If you anticipate residency issues, make sure your will is in compliance with the laws of both states, if feasible.

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Determining Your Domicile

State laws usually refer to your legal residence as your domicile. It is the house you consider to be your permanent home. It is the place you return to after a temporary absence. Factors to consider when determining domicile include the place a person dies, whether a home is seasonal, where the person voted, the address she used for income tax returns, the state where her cars are registered and the state that issued her driver’s license. Other indicators may include the location of her doctors, lawyers and accountant and her place of worship.

Probate Where?

Probate typically takes place in the state where a person kept her legal domicile at the time of death. If that’s not clear, the executor chooses the logical jurisdiction after considering the factors that determine domicile. If interested parties disagree, they can petition the court for a hearing and ruling on the issue. Typically, the county probate court handles all personal property the deceased owned as well as real property located in the state. The laws of the state where the deceased was domiciled typically govern who gets the deceased's personal property, wherever it was located. However, that’s not the case with real property, such as a house.

Real Property in Different States

If a deceased person owned property in more than one state, there will usually be two probate proceedings. After the will is admitted to probate in the home state, it must be offered for probate in other states where the deceased owned real estate. That second probate procedure is known as ancillary probate. Some states require the appointment of a second executor who lives in the state to handle the distribution of property to beneficiaries. Because probate is a matter of state law, it is always a good idea to review the probate requirements of your jurisdiction.

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The Difference Between the Grant of a Probate & an Ancillary Probate

References

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