Can a Will Be Probated in Another State?

The answer to that question depends on many factors. Read on to learn how to determine the state of residence for probate, what happens if a property is in more than one state, and how probate laws differ.

The Purpose of Probate Proceedings

Probate proceedings settle an estate. After a person dies, the personal representative pays the debts and distributes the assets to the beneficiaries. If the person had their assets in a trust, the estate administration is streamlined in probate court.

If the person had a last will and testament or died intestate (without a will), their estate will likely go through probate administration. The personal representative or executor named in the will manages the probate process. If there is no will, the probate court appoints a personal representative.

During probate, the decedent's financial assets, personal property, and real estate go to their creditors, family members, and other beneficiaries. Probate follows the state laws where the person resided. So it does matter where the person lived.

Where Did the Deceased Person Reside?

Sometimes the deceased person's state of residence is unclear.

• What if they had homes in multiple states?
• What if the person had a property interest in a state where they did not live?
• What if they did not own a home and frequently traveled between states or countries?

These are critical questions that the executor or personal representative must have answered before they can move forward with the probate process.

Variations Between Different States

Probate laws can differ from state to state. Those differences are less critical if there is a will, but if there is not, then state laws define inheritance rights.

A spouse is always the first to inherit property through intestate succession, but how much they inherit may be impacted by:

• Whether the deceased lived in a community property state like California or an "equitable distribution" state like Florida
• Whether the spouses owned property together in joint tenancy with right of survivorship, as tenants in common, or if one spouse is not named on the deed
• Whether there were children from this marriage or earlier marriage

Another state-to-state difference has to do with the size of the estate. In New York, if the decedent's assets (excluding real estate) are valued at less than $50,000, the estate can avoid probate proceedings. Assets can transfer using death deeds or affidavits. In Florida, if the estate value is $75,000 or less (excluding real estate), or the decedent has been dead for more than two years, the estate does not require probate.

How Is State of Residence Determined for Probate?

There are several factors to consider when determining where a person actually resided:

• What state issued their driver's license?
• In what state were their cars registered?
• What address did they use on their federal tax returns (even if they filed state income tax returns in multiple states)?
• Where were they registered to vote?

Ideally, the answers to these questions provide a clearer picture of the decedent's true place of residence. If questions remain, the executor or personal representative may consult a probate attorney to determine in what state and county to open probate.

Ancillary Probate: When There Is Property in More Than One State

If the decedent owned real estate or personal property in a state (or states) where they did not reside, then the executor may have to open one or more probate proceedings. This is called "ancillary probate." It's ancillary, or in addition to, the "domiciliary" probate case in the state of residence.

The probate court in the county where the person resided has no authority or jurisdiction over property, assets, or interests held in another state. Assets owned in other states could include:

• Vacation homes or condos
• Cars, boats, or airplanes
• Interests in a family cabin or ranch
• Oil, gas, or mineral rights

While it is more than a nuisance to open probate proceedings in more than one state, many state courts work cooperatively together to shorten the process.

• Some courts automatically accept a will from another state if accepted in the domiciliary state court.
• Some courts accept authorizations provided by the domiciliary court to the executor.

"But Can I Move Probate to the State Where I Live?"

If you are the executor or personal representative who must administer an estate in another state, the answer is no. You cannot move probate to your state. Probate opens in the deceased's state of residence.

If they owned property in other states, you must also open ancillary proceedings in those states. You may need to retain legal counsel in that state to help with ancillary probate.

Can Estate Planning Help Avoid Probate in Multiple States?

Yes, it can! Through estate planning, you can take steps to remove real estate and personal property from your probate estate. Those assets will transfer outside of your will. For example, you can:

• Make bank accounts payable on death (POD) to a named beneficiary
• Re-title property to transfer on death (TOD)
• Name beneficiaries on life insurance policies and retirement accounts
• Title real property (real estate) to joint ownership to give survivors the automatic right to inherit

These strategies can reduce the estate's value, so probate is either avoided or simplified.

Estate Planning

If you have questions about where to probate an estate, get legal help. Talk to a local estate planning attorney if you want to draft estate planning documents that avoid the need for multi-state probate.