The Surrogate’s Courts in New York are located in the various counties. There is a Manhattan (New York County) Surrogate’s Court, Queens County Surrogate’s Court, Kings County Surrogate’s Court and so on. The County courts generally accept filings for estate matters that concern decedents that are domiciled in such county when they die. Surrogate’s Court Procedure Act (“SCPA”) Section 205 provides, in part, in paragraph 1 that “the proper venue for proceedings relating to such estates is the county of the decedent’s domicile at the time of his death“. Domicile is generally the location where a person has his primary home. See SCPA Section 103(15).
In view of the above provisions, upon the death of a person who has lived for example in Queens County, the proper court to file estate proceedings would be the Queens County Surrogate’s Court. Such proceedings may be a probate proceeding if the decedent left a Last Will or an Administration proceeding if the person died without a Will (“intestate”). Generally, if the case is filed in the wrong county the Court will reject it.
There are many instances when it is difficult to determine which county was the decedent’s domicile. The decedent may have had a number of residences in New York or owned a number of homes. When there is confusion as to the place of domicile, a Court will look to the facts of the case including where the decedent voted and had most of his personal and financial affairs located. These and other facts can show the decedent’s intent as to his domicile.
In a recent case decided by Onondaga Surrogate Ava S. Raphael on August 25, 2014, entitled Matter of Altman, the decedent had lived previously in Onondaga County. However, about 6 months before he died, the decedent moved to Orange County to live with his son who cared for him while he was ill. The decedent died in Orange County.
The Court found that the decedent’s domicile remained in Onondaga County since the Court found he did not intend to change his domicile and only moved due to his illness.
It should be noted that the question of domicile can also arise as to which state i.e. Florida or New York, was the proper domicile for purposes of the controlling law and taxation of a decedent’s estate. I have represented many clients where the issue of domicile has been involved in filing papers in the appropriate County or State Court. Typically, when these issues arise, the Court asks for an Affidavit of Domicile and other proof upon which to base its determination.
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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