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
• How probate laws differ from state to state

This article addresses issues related to an out-of-state will.

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. Assets held in a trust streamline the estate administration 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 personal representative oversees the distribution of the decedent's assets and payment of any debts. These assets can include:

• Financial assets
• Personal property
• Real estate

When the estate owes estate taxes, the personal representative must ensure the estate satisfies the tax liability. The personal representative will also provide the decedent's creditors, loved ones, family members, and other beneficiaries with proper distribution.

Where Did the Deceased Person Reside?

Probate follows the state laws where the person lived at the date of death. 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?
• Does the decedent own out-of-state property?
• What if the decedent did not own a home and frequently traveled between states or countries?

These are crucial questions for the executor or personal representative. The personal representative must answer these questions before the probate process begins. The personal representative must determine the necessity of an ancillary probate process.

Variations Among State Laws

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

A spouse is always the first to inherit property through intestate succession. The amount inherited may be affected by the following:

• Whether the deceased lived in a community property state such as California
• Whether the deceased lived in a state with "equitable distribution," which, for example, applies to Florida residents under Florida law
• 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 an earlier marriage

Another state-to-state difference has to do with the size of the estate. In New York, estates valued at less than $50,000 (excluding real estate) can avoid probate proceedings.

Assets can transfer using death deeds or affidavits. For example, in Florida, if an estate's value is $75,000 or less (excluding real estate), the Florida estate does not require probate. The estate does not require probate if the decedent has been dead for over two years.

How Is the State of Residence Determined?

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

• 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. The executor or personal representative may consult a probate attorney if questions remain. A lawyer can determine in what state and county to open probate.

Ancillary Probate: When Property Is in Multiple State

The executor may have to open one or more probate proceedings, called "ancillary probate." This happens when the decedent owned real estate or personal property in a state (or states) where the decedent did not reside.

Ancillary probate is 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

It can be a nuisance to open probate proceedings in multiple states. Many state courts, however, will cooperate to shorten the process.

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

Can I Move Probate to the State Where I Live?

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

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

Can Estate Planning Help Avoid Probate in Multiple States?

Yes. Estate planning lets you 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
• Retitle property to transfer on death (TOD)
• Name beneficiaries on life insurance policies and retirement accounts
• Title real estate to joint ownership to give survivors the automatic right to inherit

These strategies can reduce the estate's value. You can avoid or simplify probate through beneficiary designations and retitling property.

Estate Planning

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

An estate planning attorney can also help you put other directives in place for your estate plan. These additional legal documents can include the following:

• Power of attorney
• Revocable living trust
• Living will

Whether you need legal advice regarding probate in another estate or documents for your estate plan, estate planning attorneys can help.