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New York Probate Cases Usually Concern the Will of a Domiciliary of the State

Probate of a Will in New York is primarily controlled by the various estate laws. These statutes are part of the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).   The probate process has been examined in many of the articles appearing in the New York Probate Lawyer Blog. When a person dies and leaves a Last Will, a petition for the probate of the Will is filed in the Surrogate’s Court. The petition contains information regarding the decedent, his address, the name of the petitioner, the date of the Will, the names of the attesting witnesses to the Will, the approximate value of the estate and the names and addresses of the persons interested in the estate.

The petition is filed with the Court along with an original death certificate, the original Will and other mandated documents. Kinship affidavits may also be required.In many cases, a question may arise as to the proper Court in which to file the probate proceeding. A decedent may have homes or residences in more than one state.  Also, the decedent may be in the process of moving to a new State or may have recently relocated.  These issues are not easily resolved.

SCPA Section 205 provides that the Surrogate’s Court has jurisdiction over a decedent’s estate where the decedent had been a New York domiciliary. Domicile is defined in SCPA Section 204 as basically the place where an individual has his “principal home”. The facts of any particular case, however, may cause confusion as to whether a person was a New York domiciliary.

A recent case decided by Queens Surrogate Peter J. Kelly on November 9, 2016 entitled Probate Proceeding, Will of Lowenberg, reflects the complexity in determining domicile for the purposes of probate. In Lowenberg, the decedent had been a Maryland domiciliary for over 20 years and had lived in that State with her children and husband. The Will that the decedent had left was prepared and signed in Maryland. Approximately, less than six months prior to her death the decedent divorced her husband.

Less than two months before she died the decedent relocated to a nursing and rehabilitation facility in Queens, New York where she died.  After her death, the decedent’s brother filed a probate proceeding in the Surrogate’s Court of Queens County.  Thereafter, a daughter of the decedent asked the Court to dismiss the probate case alleging that the decedent was not a New York domiciliary and that the Court did not have jurisdiction to consider the probate proceeding.

After reviewing the facts, the Court found that the decedent was not a domiciliary of New York since there was no indication that the decedent intended to change her domicile from Maryland to New York. The Queens Surrogate’s Court then dismissed the probate petition without prejudice to having it filed in Maryland.

I have represented many individuals in probating a Will as well as in cases concerning Contested Will proceedings. If you have a question regarding a probate matter or other estate issue call me now for a free review. Probating a Will requires compliance with  many estate statutes and rules. The assistance of an experienced estate attorney can be essential to a successful estate settlement.

New York Trust and Estate attorney Jules Martin Haas, Esq. has been representing clients in Surrogate’s Court and estate administration in Manhattan, Queens and Brooklyn throughout the past 30 years. If you or someone you know is involved with or has questions about Estate Settlement, please contact me at (212) 355-2575 for an initial consultation.

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