The New York Probate Lawyer Blog has talked about many situations involving the probate of a decedent's Last Will or the intestate administration of an estate where there is no Will. These proceedings comprise the most basic avenues for a decedent's estate settlement.
However, even more fundamental, and as a preliminary step to commencing such proceedings, a determination needs to be made as to whether the New York Surrogate's Court is the appropriate Court to initiate the case. If New York is not the proper forum, the Court will not allow the proceeding to be filed. It may be that another state (i.e., Florida, New Jersey), may be the proper place to file and administer the estate proceedings.
Choosing the proper forum or Court is not always an easy task. This choice of forum begins with a finding of the decedent's "domicile". Domicile is an extremely important issue since it will not only affect the location of the Court that is appropriate to process the decedent's estate, it may very well determine the State law that controls the issues surrounding estate administration such as spousal and kinship rights. Domicile also affects many other issues such as taxation.
Domicile essentially refers to the place that is considered a person's primary home. A person can have many different residences around the world but only one primary home or domicile. Domicile is defined in the New York Surrogate's Court Procedure Act Section 103 (15) as "A fixed, permanent and principal home to which a person wherever temporarily located always intends to return."
Domicile can be difficult to determine where a person has residences in more than one state or country and divides his or her time between these locations. Among the factors that a Court reviews in deciding an issue of domicile are where a person files state and local income taxes, and where a person has a driver's license, voting registration, and other social and business connections.
As noted, domicile is important because it may determine various rights. For example, a decedent who is a domiciliary of New York will be subject to New York statutes for the purposes of determining the decedent's distributees or next of kin. Statutes of a different state, for example, New Jersey, may differ from those in New York and specify different individuals or interests in a decedent's estate. The result may cause variations in amounts inherited or even rights to an inheritance.
A recent example of the importance of determining domicile was seen in Matter of Ranftle, decided by New York County Surrogate Kristin Booth Glen on September 14, 2011 and reported in the New York Law Journal on September 23, 2011. In Ranftle a question arose concerning whether a decedent was domiciled in New York or Florida. The importance of this question centered around the fact that unlike New York, Florida would not have recognized the decedent's same-sex marriage that took place in Montreal, Canada. Therefore, if Florida law controlled, the decedent's spouse may have lost inheritance rights in the Court proceedings. After an extensive review of the numerous factual contacts the decedent had both in New York and Florida, Surrogate Glen determined that the decedent was a New York domiciliary.
As a New York Probate attorney I have reviewed many cases with clients where an initial determination must be made as to the proper Court in which to commence a probate or intestate administration proceeding. Additionally, a thorough review of a client's domicile is imperative when preparing an estate plan so that the provisions of a Last Will or Trust will be in accordance with the relevant State laws.