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Where is home for this probate?

I was recently contacted by a potential client who lived in California. They had lost a loved one and wanted to know about probating their loved one’s will. That all sounds simple so far but wait….

Like many their loved one had set up a will and trust in the US and put some, but not all, of their assets into the trust. This is a common problem so please heed this public service message: FUND YOUR TRUST WHILE YOU ARE ALIVE!

Their loved one further complicated the situation by moving to another state in the union and then moving to a foreign country which is where they resided at death.

Can a California probate attorney help?

Wellllllll, it’s complicated.

Maybe.

Two different thoughts came to me:

  1. Full probate, or
  2. Heggstad petition.

The full probate option then begs the question where would they file. Certainly, if they have assets in the foreign country then probating the will there is likely required. From there an authenticated copy of the will and order admitting the will to probate (i.e. accepting it as valid) could be brought back to the US to file. Where in the US?

If there is real property in a state generally an ancillary probate would need to be filed there.  So, if the decedent had a house in South Lake Tahoe then an ancillary probate could be filed in El Dorado county, California.  From my other blog posts you know what ancillary administration is, but in case you forgot, in California ancillary administration is defined as “proceedings in this state for administration of the estate of a nondomiciliary decedent.” (California Probate Code §12501). As you also know from other blog posts, of mine, an ancillary probate is basically the same as a full probate in California. It’s not abbreviated.

However, what if there is a bank or securities account worth more than $150,000? Where then? California is the exclusive jurisdiction for assets that are in California. Where is the bank account? Is it any state the bank has a branch? Is it the state of home office of the bank? Is it the last state the person resided before going abroad. I would say you could make any of these arguments and likely be successful.

This doesn’t say what law will be applied, for example, if a person dies without a will. That’s a discussion for another day.

The key is to find an experienced probate attorney and start there. If California isn’t proper an experienced California probate attorney will tell you that and likely give you a suggestion on what state is proper and may even have an attorney to refer you to!

Oh ya, I wanted to also talk about option 2 which is doing a Heggstad petition. I believe if the trustee resides in California then the principal place of trust administration is California. I would thus say if the facts would work for a Heggstad petition (unfunded trust) then that might be a way to do handle the probate here in California. Again, working with an experienced California probate attorney is key.

Best of luck.

-John

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10.0John Bernard Palley
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