New York Estates Require A Local Domicile For Consideration

When a person dies there are many issues that can affect the settlement of his estate. Initially, it must be determined wither the decedent had executed a Last Will. If so, then a probate proceeding is to be filed in the Court. In the event the decedent died intestate (without a Last Will), then an Administration proceeding is filed.

Another primary issue that needs to be considered is whether the decedent was a domiciliary of New York. Domicile is defined in the Surrogate’s Court Procedure Act (SCPA) Section 103(15) as a person’s principal fixed and permanent home. Domicile is important because generally the New York Courts only have jurisdiction over the estates of a person domiciled in New York at the time of death. A person may have numerous residences but he can only have one domicile. The New York Probate Lawyer Blog has discussed this issue in earlier posts.

Problems arise when a person dies outside of New York State and appears to have been living in the out-of-state location for a significant period of time. For example, a person may die in Florida where he has another home and it appears that prior to death the decedent was spending a lot of time at the Florida home rather than at a New York home. In such a case, if Florida was the decedent’s domicile, then the probate or administration proceeding would need to be filed with the Florida Court. These types of situations can cause delay and confusion at the outset of the estate settlement process.

A recent case decided by Nassau County Surrogate Margaret Kelly dated August 10, 2017 entitled Estate of Schellbach highlights the issues of domicile described above. In Schellbach, the decedent died in Connecticut without a Last Will. At the time of her death, the decedent had been residing in a Connecticut nursing home for about 3 years prior to her death. Prior to that time she was in a New York nursing facility. The decedent had previously lived in Nassau County for 44 years before selling her Nassau County home about 6 years prior to her death.

The issue for the Nassau Surrogate was whether the decedent was a Nassau or Connecticut domiciliary. After reviewing all of the facts regarding the decedent including her various contacts with each state, the Court concluded that there did not appear to be evidence that the decedent intended to change her domicile from Nassau County to Connecticut. Therefore, the Court granted the petition for letters of administration.

Preparing and filing petitions for probate or intestate administration in New York can have many complex factors. Determining a decedent’s domicile is only one of many issues that an experienced estate lawyer may assist with. I have been representing individuals in probate and administration cases for over 30 years. Call me now for a free discussion regarding your issue.

New York Trusts and Estates Attorney Jules Martin Haas, Esq. has been representing clients in New York Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in New York, including Queens and New York Counties. If you or someone you know is involved with or has questions about a New York Estate, please contact me at (212) 355-2575 or email:, for an initial consultation.

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