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Where should you probate the estate of a loved one who has passed away?

It can be complicated to figure out where to probate a loved one's estate, but it doesn't have to be. Ordinarily, probate should be established in the county where your loved one resides at the time of death. However, there are certain circumstances where it may be more appropriate to open an estate in a different state from the state of residence.

When a loved one dies with real property or other specific assets titled solely in their name or titled jointly in a manner that does not facilitate transfer to a joint owner by operation of law, there will be a need to probate their estate. This will require the appointment of an authorized individual to settle the affairs of the estate and make the appropriate distributions.

When figuring out where to probate an estate, whether in a state where probate is required or not, it's essential to know and determine the deceased person's estate assets. These assets can be either real property, tangible or intangible.

Tangible assets are assets that have physical existence. These assets can be seen, felt, and touched. These assets include real estate, land, cash, cars, furniture, and more.

Intangible assets are assets that lack physical existence. These assets can't be seen or touched. This asset includes goodwill, copyright, patent, trademarks, bank or retirement accounts, and more.

When there isn't a clear place where these assets are located, or when they are stored in multiple locations, you'll need to figure out where to probate an estate or how to handle this best. If you're unsure where to probate the estate, we've put together the following scenarios to help you find the right place to open and probate the estate your deceased loved ones left you.

Scenario 1: If the decedent's estate comprises only intangible assets, probate may be opened in the county where the decedent lived. It is also worthwhile considering the need to probate this estate.

Scenario 2: If all the property is located in one county, you will probate all that property in the county where it is located.

Scenario 3: If the properties are located in one state but in different counties, they should be probated in the county where the decedent lived at the time of their death.

Initially, the probate process for real estate and other tangible properties takes place in the county where the property is physically located. However, there is an exception to this rule if the deceased person owned tangible assets or real properties in more than one county within the same state. So even if some of the decedent's tangible assets are in another county, the estate should be opened in the county where they lived.

Scenario 4:

a. If tangible and immovable properties like lands and real estate properties are located in different states, these properties will be probated where they are located. You might have to deal with separate probate proceedings in various locations.

b. If tangible and movable properties like cars and artworks are located in different states, these assets may need to be probated in the county where the decedent lived.

c. If the intangible assets are located in different states, these assets are probated in the county where the decedent lived at the time of their death.

If you want to learn more about probate, we highly recommend you speak with an attorney specializing in the area. The attorney will be able to help you determine whether or not a probate estate is needed. If required, they will also help you navigate the legal proceedings involved in establishing one. Call our law office today so we can help you avoid unnecessary headaches.

Key Takeaways

Probate is usually opened where the deceased lived. In most cases, the probate estate should be filed in the county where the decedent was legally domiciled (their primary residence) at the time of death.
The type and location of assets matter. Whether an asset is real estate, personal property, or an intangible asset can affect where probate should be opened and whether additional probate proceedings are required.
Real estate often follows its location. If the deceased owned real property in another state, an additional probate proceeding (often called ancillary probate) may be necessary in that state.
Assets in multiple counties don't always require multiple probate cases. If all property is within the same state but spread across different counties, the primary probate proceeding is generally opened in the county where the decedent resided.
Intangible assets are generally handled through the primary probate estate. Bank accounts, investment accounts, and other intangible assets are typically administered through the probate court where the decedent lived.
Not every estate requires probate. Some assets pass automatically through beneficiary designations, joint ownership with rights of survivorship, or trusts, potentially eliminating the need for probate for those assets.
Determining the correct probate venue can prevent delays. Filing in the proper court from the beginning helps avoid unnecessary costs, delays, and jurisdictional issues.
Professional guidance can save time and expense. An experienced probate attorney can determine whether probate is necessary and identify the correct court based on the decedent's assets and circumstances.

Frequently Asked Questions (FAQs)

1. Where should a probate estate usually be filed?

In most cases, probate should be filed in the county where the deceased person legally resided at the time of death.

2. What if my loved one owned property in another state?

Real estate located in another state may require a separate probate proceeding in that state's courts, in addition to the primary probate estate.

3. Does owning property in multiple counties require multiple probate cases?

Not necessarily. If the properties are located within the same state, probate is generally opened in the county where the decedent lived, even if assets are located in different counties.

4. What are intangible assets?

Intangible assets include items that have no physical form, such as bank accounts, retirement accounts, investment accounts, copyrights, trademarks, and intellectual property.

5. What assets typically avoid probate?

Assets held in a trust, jointly owned property with rights of survivorship, and accounts with valid beneficiary designations often pass outside of probate.

6. What happens if I'm unsure whether probate is required?

A probate attorney can review the deceased person's assets and ownership structure to determine whether probate is necessary and where it should be filed.

7. Can I probate an estate in a different county for convenience?

Generally, no. Probate must be filed in the court that has proper legal jurisdiction based on the decedent's residence and, in some cases, the location of certain assets.

8. Why is choosing the correct probate court important?

Filing in the correct court helps avoid delays, additional expenses, and potential jurisdictional challenges that could slow the administration of the estate.

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