Where to Probate a Will

By Marie Murdock

A personal representative named in a will may have many and varied duties during probate. Once a death has occurred, he should present the will to the probate courts for acceptance and to receive the court’s authority to act. He may, however, be uncertain as to the location of the proper court.

State of Residency

Generally, a will is admitted to probate in the probate court for the state and county of residence of the decedent prior to her death. If the decedent owned property in two different counties within the same state, the will should only be probated in the county of her residence. In the event the property in the county of non-residence is to be sold, it may be necessary to file certified copies of the estate documentation or some type of notification document in the deed or real property records for that county. This will serve to perfect the record as to the disposition of the real estate in that county.

States of Dual Residency

If the decedent owned property in a different state and had established dual residency, the personal representative may have to file dual probate proceedings in both states. Even if the decedent’s state of residency is established in one state, ownership of additional property in another generally will require probate in both states. Filing a foreign will for probate is referred to as an ancillary probate. Different states may have different laws regarding methods of ancillary probate; therefore, it would be wise to consult a probate attorney in the non-resident state for assistance.

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County of Domicile

The decedent may have resided with a relative or in an assisted living facility. Any probate of her will should take place in the state and county where she lived prior to her death. The amount and types of assets she owned will determine whether or not a will should be probated at all. If all of her assets were in the form of personal items with no ownership titles attached, no probate may be necessary. If, however, she died owning a vehicle or other types of property requiring legal transfer, probate or at least the filing of a small estates affidavit with the probate court may be necessary to transfer title of those assets.

County Probate Court

Regardless of the location of the decedent’s home, wills in most states are probated in the county probate courts. Some states vary, however. In Alabama if estate matters become complicated or if there is infighting among the heirs or devisees under the will, the estate may be moved to the state circuit court upon request to complete the probate process. Other states, such as Virginia, may not have probate courts, so estates are handled by the state circuit courts.

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