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What state to file petition for estate executor?
Anonymous7 views5 answers
My mother-in-law recently passed away in FL. We had moved her from ME to FL to be closer to us. My husband is the sole beneficiary and personal representative (she had a will done in Maine). Where should we file petition for exec of estate? She most recently lived in FL, but her only possession was in ME (a small piece of land with a mobile home valued under $50k). Her address had been changed to FL with Social Security, etc. Thanks in advance for any advice you can provide.
First, my condolences over your loss. Second, this is a frequent concern, about which I discussed in an article recently published. The standard is whether or not your mother-in-law resided in the state of Florida for six months and a day. If so, then she is declared a resident in Florida and probate administration will be needed in Florida. The death certificates should indicate as such. To verify, please contact a local probate Attorney. Good luck with your endeavours and again my deepest condolences
If there are absolutely no assets in Florida, then you will just file what is referred to as an Ancillary Estate Administration in Maine. The only time we do both is when there are assets in both states. If there are no assets in Florida, there is no need to waste the expense and time of opening a Florida probate proceeding.
Very sorry for your loss and the passing of your mother, please accept my condolences at this sad and difficult time. You usually are required to file probate in the state of residence, while it would appear that she became a resident of Florida, it also appears that all of her assets and property are in Maine and that may well still be her state of residence. If you file in Florida (where there are no assets apparently), you will have to file an ancillary probate in Maine with respect to any property she has there, if you were to file probate in Maine, if any property exists in Florida then you would need to do an ancillary probate here potentially. As a general rule, you file in your state of residence, in this instance, you likely would want to discuss more specifics and details with a probate attorney and determine precisely where you should file. I am of the initial opinion that you can and should go with Maine, just because she came to live with you because she was ill or otherwise not doing well, she likely is still considered a resident of Maine. You would want to look at her bank/s, driver license, etc. Just because she changed her address for social security to get her checks does not mean this was her permanent residence.
I agree with Attorney Voss. If her address on her death certificate is Florida and you live in Florida I would file it in Florida, unless she owned a home in Maine, and then it's more complicated.
I'm sorry for your family's loss. Whether your MIL "intended" to return to ME or remain in Florida is the initial question. If she intended to stay in FL, making Florida her domicile, then there are some "indicia" that should be looked at: from what address was her last tax return filed? did she change her voter registration to FL? did she have a car in Florida? a rental apartment (written lease) or did she purchase a place to live in Florida? It might be because of her weakened condition, none of those were done or you hadn't had time to do them. So the next item to look at would be the death certificate - if the death certificate says she was a Florida resident and your husband believes this to be true, then Florida would be the place for a primary (domiciliary) probate. If the death certificate identifies FL as MIL's residence and it's not true, then the death certificate should be amended. However, if MIL had no assets in Florida, then look to ME to see if they require a Florida probate first and if not, then only in ME to probate the ME property, if ME law requires it. I hope there's some useful information for you in this answer.
