How to Determine Where to Open a Probate Estate
Figuring out where to probate a loved one's estate can be simple or complex depending on what they owned. Some assets don't even require probate, but the chances are that you will have to open a probate estate if they die owning property in their sole name or as a tenant-in-common with someone else. It's the only way to move that property from their name into those of their living beneficiaries and heirs.
If the decedent died in the same county where all their property is located, there's no issue – this is where probate should be opened. But unique situations can arise, such as when probate isn't required in the county where the decedent lived because they don't own property located there, but they do own real property in another state. In this case, you might do your best to consult with an attorney in the state where the property is located to determine the correct course of action. Here are a few examples.
Tangible vs. Intangible Assets
First, a lesson in legalese: tangible vs. intangible assets.
Tangible assets are those that physically exist. They're something you can touch or hold in your hands, like real estate, automobiles, artwork, and jewelry.
Intangible assets are much more complicated. Think of these as rights to a certain asset and/or the income it produces, such as patents, copyrights, or bank or retirement accounts.
Technically, you could "touch" the last two if you emptied them out and held the cash in your hands, but the law doesn't consider such finer points. And here's another wrinkle: Some states do consider retirement and bank accounts to be tangible because yes, they can be emptied out and "touched."
If the decedent's probate estate consists only of what the state considers to be intangible assets, a probate estate can be opened in the county where the decedent lived at the time of their death.
Same State, Different Counties
Although tangible personal property and real estate must be probated in the county where the property is physically located, an exception exists if the decedent owned tangible assets or real property located in more than one county within the same state.
In this case, the estate should be opened in the decedent's county of residence at the time of death, even if some property is located elsewhere. But not all states handle property in multiple countries this way, so check with a local estate planning attorney to make sure.
Probate in Two or More States
If the decedent owned tangible, immovable assets like real estate, this usually requires that probate is opened in the state where it's located. If this is different from where they lived at the time of their death, you could end up handling more than one probate proceeding in different locations.
Tangible, movable personal property like artwork, as well as intangible property, should be probated in the county where the decedent lived at the time of his death. But an ancillary probate estate would have to be opened in other states as well, where the decedent's out-of-state property is located.
You Can Avoid Complications With a Living Trust
Assets held in revocable living trusts don't require probate at all, so you can avoid the necessity of your heirs opening multiple estates by forming one in advance of your death. It's critical that you transfer all your assets into the trust after forming it, however, or it won't serve the purpose for which it was intended. Probate is still required for any assets personally owned by a decedent and not placed in the name of their trust.