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When and Where to Bring Probate Proceedings - Module 1 of 5

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When and Where to Bring Probate Proceedings

Probate is the judicial process by which a decedent's estate is valued, beneficiaries are determined, an executor is put in charge of the estate, distribution is declared, the decedent’s debts are paid and the estate is legally transferred to the beneficiaries.[1] The term probate includes both testate (with a will) and intestate (without a will) administration.

When Probate is Necessary

Probate is not always required. Probate may not be necessary, for instance, when someone dies without assets in her name. [2] In addition, probate is not necessary when the deceased person owns all of her assets jointly with another person or has named beneficiaries to receive her assets at death (as in the case of pay on death accounts, life insurance or retirement assets). These assets transfer to the joint owner or beneficiary by operation of law, and so probate is not necessary.[3]

Probate is typically required under any of the following circumstances:

1. Where a person has died with assets in his sole name that must be transferred to beneficiaries.

Banks and other financial organizations require a court order to transfer assets held in a deceased person’s name. Real property can be transferred by deed, but- without probate- the title to the real property held by the decedent would be clouded and later sale or transfer of the property would be difficult, if not impossible.  

In some states, probate is not required when the value of the decedent’s assets total less than a specified dollar amount. In Colorado, for example, estates that contain no real property and are valued at less than $66,000 may be transferred by affidavit rather than through the probate process.[4] In Alabama, an estate without real property, valued at less than $29,710,[5] can also be transferred by affidavit. Georgia has both a small estate process (less than $10,000)[6] and a summary intestate probate proceeding. In the latter, where there's no will, all the heirs agree on how to divide the assets and, if there are no creditors, the court can issue an order stating that no probate is necessary.[7]

2. Where a person has died testate or intestate with substantial creditors whose claims must be evaluated and compromised or paid.[8]

Especially in situation where the deceased didn’t own enough assets to pay all creditors, it is important to obtain a court order settling those claims. Creditors whose claims are evaluated through probate have a limited time to file claims. Where creditors are not notified or their claims are not evaluated by a court, they may have months or years to file claims or lawsuits against beneficiaries who have received assets of the estate.

3. Where the estate intends to file a lawsuit for any purpose (such as wrongful death), or someone has filed a lawsuit against the deceased person.[9]

Court-appointed executors have standing to file and prosecute or defend lawsuits on behalf of the estate, the deceased person and the beneficiaries. If litigation is anticipated, the estate must be opened (to pay or receive lawsuit proceeds) and an executor must be appointed.

4. Where a deceased person has left a minor child, and a guardianship must be opened because there is no living parent or guardian.[10]

In many states, guardianship of a minor child is established through the probate court which oversees placement of the child and reviews annual reports and accountings from the guardian of the child.

5. Where the deceased person created a trust before death, which must be funded and/or monitored for any reason after the person’s death.[11]

Though assets in trusts generally need not be probated, trusts sometimes must be funded after death. There also may be cases where a revocable trust must be monitored by a court for some other purpose, such as to ensure the payment of creditors’ claims when an estate is otherwise too small to pay all debts or is insolvent.

Probate Court Jurisdiction

To accept the filing of a will and in order to oversee the administration of an estate, a probate court must have jurisdiction. Jurisdiction is the “power of a court to adjudicate cases and issue orders.”[12]

Probate courts need two types of jurisdiction: jurisdiction over the property and subject matter jurisdiction.

Subject matter jurisdiction is the “power of a court to adjudicate a particular type of matter and provide the remedy demanded.”[13] Probate courts have jurisdiction to hear probate matters. They may also have jurisdiction to handle related matters, such as mental health, conservatorships and guardianships[14] However, a probate court will likely not have jurisdiction to hear criminal or divorce matters, for instance.

Jurisdiction over the property (sometimes called “in rem” jurisdiction) in a probate proceeding, of course, means the property of a decedent. A probate court’s in rem jurisdiction can be obtained in two ways: by obtaining jurisdiction over the will that disposes of a deceased person’s assets or by obtaining jurisdiction over particular property outside of the state of domicile (“ancillary” jurisdiction).[15]

A court’s “domiciliary” jurisdiction may be exercised over a person’s will in the state and county where the decedent was legally domiciled at death.[16] Domiciliary jurisdiction gives a court authority over property of the decedent. Ancillary jurisdiction is obtained where a deceased person dies domiciled in one state but owns real property in another. The court in the non-domiciliary state has ancillary in rem jurisdiction only over the real property in its state.

Determining Domicile

Domicile and residency are often used interchangeably, but they are not the same legally. Domicile, a common law term, typically is used when determining whether a court or taxing authority has jurisdiction over a person. It means the person’s fixed and permanent place of abode in which he intends to remain indefinitely, or to which he intends to return.[17]

Legal domicile is determined by evaluating both residence and intent:[18] Residence is the place a person lives, even if a transient place of dwelling.[19] It is often said that a person can have many residences, but only one domicile. A person with homes in more than one state has multiple residences. A determination of domicile begins with an evaluation of a person’s primary state of residence.

Regardless of where a person is living, or how many residences he has, his legal domicile is established in the state where he has a substantial connection and the intention to make his permanent home. A person living in state A may be domiciled in state B, if that person has a significant connection to state B and an intent to return to state B as her primary residence.

Taking residence and intent together, legal domicile becomes a question of fact for a court to determine. If the person’s domicile is not clear, the courts tend to look at a number of factors, including:

·         Physical presence and time spent in the state

·         Residence(s) located in the state

·         Where family, spouse and children, reside

·         Where taxes are filed

·         Place of employment

·         Location of bank accounts, real estate and investments

·         Voter registration card

·         Driver’s license state

·         Public library card

·         Country clubs, other social clubs, and place of worship membership

·         Services of primary care professionals: doctors, dentist, attorneys, bankers, accountants, etc.

·         Where the estate planning documents are located and filed

Generally, a nursing home or hospital is not considered a place of domicile. For example, where a woman had lived in Maryland for twenty years with her husband and children and executed a Maryland will, her domicile was Maryland even though she moved to a nursing and rehabilitation facility in New York two months before her death.[20] The court found that the decedent was not a domiciliary of New York since there was no indication that she intended to change her domicile from Maryland to New York, regardless of where she temporarily resided.

There have been cases where a person has been deemed a domiciliary of more than one state, usually for tax purposes.[21] However, while there is no constitutional bar to two or more states each classifying a person as a domiciliary for state tax purposes,[22] most probate courts will declare a single state of domicile.  

Ancillary jurisdiction is both a corollary to, and the primary exception to, the rules of domiciliary jurisdiction. If a deceased person owns real property in a state other than the state of domicile, the state where the property is located will have secondary, ancillary jurisdiction over probate of that property.”[23] In such cases, the estate administrators may have to file two probate proceedings: the main proceeding in the state of domicile and an “ancillary” probate proceeding in the state in which the property sits.

Filing the Will

Probate proceedings typically begin with the filing of a probate petition along with the will, if any, in the state and county of the deceased person’s domicile. The original will must be filed with the probate court or court registry.[24] If the original cannot be found, a photocopy may be probated if there is sufficient evidence (such as, for example, testimony of the witness to the will or of the attorney who drafted it). If someone challenges the offered will, whether the will is valid becomes a question of fact for the court to determine.

There are often time limits within which the will must be filed. In Washington, a person having possession of an original will has thirty days to deliver it to the court having jurisdiction or to the person named as executor.[25] Illinois also requires the will to be deposited with the court within thirty days of having learned of the death.[26] Florida requires the custodian of a will to file it with the probate court within 10 days of finding out about the person’s death.[27] The Uniform Probate Code and Maryland require the will to be filed “with reasonable promptness” or “promptly,” but do not specify a time frame.[28]

The will must be filed even if probate is not needed. It does not require the filing of a probate administration, nor does it require the will filer to serve as executor.[29] Failing to file a will within the time required can have serious consequences. Although not a criminal violation, in many states this subjects the person to a lawsuit by someone who was financially hurt by the failure to file.[30]

Types of Probate Administration

Once it has been determined (by the heirs, nominated executor or creditor) that a probate administration is necessary, the type of probate administration that is required is determined by the rules of the state of domicile. Some states, like Texas, have simplified procedures for all probates, while other states have more complex procedures. States that have adopted the Uniform Probate Code often have similar types of probate administration, although there can still be significant differences.

Many states have some sort of “small estate administration,” where an estate under a specified value can be probated by affidavit or by streamlined procedure. In addition, many states have a procedure to probate only specific assets, such as personal property or real estate.[31]

In Texas, for example, there are three types of estate administration available to both testate and intestate estates, each with different levels of court supervision.[32] Dependent administration, the default level, has a high level of court supervision, and works best for estates anticipating conflict amongst heirs or beneficiaries or potential creditor issues. It also costs the most and takes the longest to administer.

Independent administration – the most common type of probate administration – can be agreed to by beneficiaries or specified in the will. It requires less court supervision and therefore is less expensive and can be completed more quickly.

Muniment of title, which is unique to Texas and used primarily for real property, avoids the appointment of an executor, allowing the court’s order to transfer title to the intended beneficiaries.[33]

Florida, a Uniform Probate Code state, also authorizes three types of estate administration, but they are based on the estate’s value.[34] Formal administration is the most common type of probate in Florida. It can be used for any estate of any value, but it is most often used when the decedent has been dead less than two years and the estate’s value exceeds $75,000, excluding the primary residence.

Summary administration is only available for an estate whose value is $75,000 or less, not including the primary residence. It is a streamlined, less expensive proceeding that typically does not require the appointment of an executor. Finally, Florida’s small estate proceeding, Disposition of Personal Property Without Administration, is available to many estates that meet the criteria and don’t contain any real property.[35]

In Massachusetts, there are four types of administration available, all tied to the court where the estate is to be probated and the circumstances of the estate.[36] Informal probate, for example, is an administrative proceeding processed by a Massachusetts Uniform Probate Code magistrate instead of a judge. It is available if the original will has been found, an official death certificate is available, all heirs are known and the person to be appointed executor has priority. Hearings aren't required or allowed and so the process is faster.

Formal administration is available for situations where informal probate will not work, such as where hearings may be required, the will is a copy or has handwritten words or supervision is necessary for any number of reasons. Late and limited formal probate is required if no original proceeding related to the estate was brought within 3 years of death. A late and limited appointed personal representative can't sell real estate of the decedent but can confirm title to estate assets in the successors and pay administration expenses. Finally, a voluntary administration is a simplified procedure for an estate with minimal assets (personal property of $25,000 or less, excluding the value of a car) and no real estate. The authority of the voluntary executor is limited in scope.

Generally, an attorney is not required to file for probate or estate administration, although individual states may have specific requirements.[37]

Most states require probate to be opened within a time frame established by statute. The Uniform Probate Code requires a probate to be filed within three years of death, with some exceptions.[38] The limit is also three years in New Mexico (with exceptions)[39] and four years in Texas.[40]

Montana specifies that small estates, to be probated in a simplified or informal procedure, may be opened no sooner than 30 days after death, and up to one year after.[41] With other estates, the state allows three years from the date of death.

Pennsylvania provides no limits on the filing of a will, but a request for appointment as executor filed more than 21 years after death requires a showing of cause.[42]

In California, an executor who does not file for probate within 30 days of death “may be held to have waived the right to appointment as personal representative.”[43]

If a probate proceeding is not opened within the time limit set by the state of domicile, the matter may be barred, [44] except in states like Pennsylvania that allow late filing for cause.

In our next module, we’ll look at the process of preparing and filing a probate petition and discuss the process by which the probate proceeding is held.


[1] Adam Christopher Aparicio What is the Purpose of Probate? (Feb. 21, 2011), available at https://www.avvo.com/legal-guides/ugc/what-is-the-purpose-of-probate.

[2] What is Probate?, Oregon State Bar, https://www.osbar.org/public/legalinfo/1117_Probate.htm 

[3] Probate and Planning, Office of the Minnesota Attorney General, Keith Ellison https://www.ag.state.mn.us/consumer/handbooks/probate/CH2.asp 

[5] General Information About the Alabama Small Estates Act and Summary Distributions, Probate Court of Mobile County, Alabama, http://probate.mobilecountyal.gov/AlabamaSmallEstatesAct/AlabamaSmallEstatesAct.htm 

[6] Roger Jewell, Requirements to File a Small Estate Affidavit in Georgia, https://info.legalzoom.com/requirements-file-small-estate-affidavit-georgia-21838.html 

[8] See Mary Randolph, J.D. What Probate Avoidance Can’t Change, Nolo.com 

[9] Ohio Rev. Code Ann. §§2125.01, 2125.02 and 2125.02

[10] See, for example, Katerine M. Keefe, Probate – Minor Guardianship, McHenry County, IL, https://www.mchenrycountyil.gov/county-government/departments-a-i/circuit-clerk/civil-information/probate/probate-minor-guardianship 

[12] Legal Information Institute, Subject Matter Jurisdiction, available at https://www.law.cornell.edu/wex/jurisdiction 

[13] Legal Information Institute, Subject Matter Jurisdiction, available at https://www.law.cornell.edu/wex/subject_matter_jurisdiction 

[14] See, Hennepin Probate/Mental Health Court, Minnesota Judicial Branch, available at http://www.mncourts.gov/Find-Courts/Hennepin/Hennepin-Probate-Mental-Health-Court.aspx 

[15] What is Ancillary Probate? HG.org Legal Resources, available at https://www.hg.org/legal-articles/what-is-ancillary-probate-38543

[17] See Dep’t of Rev. v. Glass, 15 Or. Tax 117 (2000).

[18] Distinctions Between Domicile and Residence, US Legal, available at https://www.hg.org/legal-articles/what-is-ancillary-probate-38543

[20] Matter of Lowenberg, 50 N.Y.S.3d 26 (Sur. Ct. 2016).

[21] See Cory v. White, 457 U.S. 85 (1982);Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937) (determined to be domiciled in two states, though taxation is only appropriate in one state).

[22] In re Dorrance, 115 N.J. Eq. 268 (N.J. 1934).

[23] “Ancillary Administration,” Plain English Law Dictionary, Nolo.com. https://www.nolo.com/dictionary/ancillary-administration-term.html 

[24] See, e.g., How Probate Works in Delaware, Legal Consumer, https://www.legalconsumer.com/inheritancelaw/topic.php?TopicID=20&ST=DE 

[28] Unif. Probate Code § 2-516; Md. Code Ann., Est. & Trusts § 4-202

[31] See, generally, Joseph N. Blumberg, 51 Flavors: A Survey of Small Estate Procedures Across the Country, (Jul. 24, 2014). https://www.jdsupra.com/legalnews/51-flavors-a-survey-of-small-estate-pro-08930/.

[32]Types of Probate, Ford Bergner LLP, available at https://fordbergner.com/legal-practice-areas/texas-probate/types-of-probate/

[36] Learn About the Types of Probate for an Estate, Mass. Gov,  https://www.mass.gov/info-details/learn-about-the-types-of-probate-for-an-estate#informal-probate

[37] See, Connecticut Probate Court FAQs, http://www.ctprobate.gov/Pages/FAQs.aspx#Q1; But see, Fla. Prob. R. 5.030 (attorney required for filing of formal probate).

[41] Mont. Code Ann. § 72-3-1101 and Mont. Code Ann. § 72-3-1104(2)