In essence, a probate proceeding should be filed in the state and county where the decedent was domiciled at the time of death or where the real property of the decedent is primarily located.  An individual’s domicile can be different than their place of residence.

A personal could have several residences, but only one domicile.  To determine which state the decedent was domiciled in, consider the following example.  Mr. Smith, who is 75 years old, lives and owns property in Jacksonville, Florida.  Mr. Smith suffers a stroke and his children fly him to New York so they can provide him with better care.  About three months later, Mr. Smith dies in New York under hospice care.

To determine which state Mr. Smith was domiciled in, consider this: If we were to remove his health from the equation, and Mr. Smith had a choice, would he remain permanently in New York, or would he return to Florida?   If he chose to stay in New York, then the State of New York would be considered his domicile and his probate proceeding would be initiated there, in the county that he passed, with an ancillary probate proceeding commenced in Florida to take care of any real estate stationed there.  If, on the other hand, Mr. Smith would return to Florida, if given the choice, then his estate should be probated in the sunshine state.

If this sounds confusing, it’s because it is.  An estate attorney can advise you how to properly proceed and where to file for Letters of Administration or Testamentary Letters.  It is recommended that you consult with a local probate attorney in both states as convenience is a major factor as to where you can file.  You can also contact the local Surrogate’s Court to gather more information.