If a person dies owning assets in his or her sole name or as a tenant in common, then chances are the assets will need to be probated in order to get them out of the decedent's name and into the names of his or her heirs. But once it has been determined that probate will be necessary, how do you determine where to file for probate? Here are the general ruless that govern where a probate estate should be opened.
1. Probate assets consist of intangible assets
If the probate estate only consists of intangible assets such as bank accounts, investment accounts and stocks and bonds, then a probate estate will need to be opened in the county where the decedent lived at the time of death.
2. Probate assets consist of personal effects and/or real estate in one state
Tangible personal property and real estate must be probated in the county where the property is physically located, except that if the decedent owned tangible assets or real property located in more than one county within the same state (for example in Naples and Miami, Florida), then the estate should be opened in the decedent's county of residence at the time of death.
3. Probate assets include personal effects and/or real estate in two or more states
Since tangible personal property and real estate must be probated in the county where the property is located, first an estate must be opened in the county where the decedent lived at the time of death, and then an ancillary probate estate must be opened in the other state or states where the decedent's out-of-state property is located.
Note that these categories are not exclusive and unique situations can arise, such as when there is no need to open an estate in the county where the decedent lived but he or she owned real property in another state, or where the property is located on an Indian reservation. In these situations an attorney in the state where the property is located should be consulted to determine the best course of action.