Articles Posted in Domicile

The New York Probate Lawyer Blog has published many articles about administering a New York Estate.  At the commencement of administration, an essential issue is whether a decedent had executed a Last Will and Testament, or whether he died intestate.  This issue determines the type of proceeding which will be filed in the Surrogate’s Court.  If there is a Will, a probate proceeding is started.  Where there is no Will, a petition for letters of administration is utilized.  In each case, the goal is to obtain the appointment of an estate fiduciary, whether an executor or administrator.

Also, each type of proceeding carries with it a host of other issues.  A probate proceeding may involve the possibility of a Will Contest.  Where there is no Will, there may be a contest as to which distributee should be appointed as the estate administrator.  However, an issue which is pervasive regardless of the type of proceeding is where a decedent was domiciled at the time of death.  Domicile is the place where a person has their fixed or primary home.  Someone can have many residences but only one primary domicile.  Domicile is important because the laws of a person’s domicile basically control many of the substantive issues regarding a person’s estate.  Also, a Surrogate’s Court may not accept a case for filing and determination if a decedent was not domiciled within the Court’s jurisdiction.

For example, in some estates there may be an issue regarding a spouse’s right of election to receive a minimum share of a decedent’s estate.  Generally, the issue of a right of election is controlled by the laws in a decedent’s domicile.  Also, a New York Surrogate’s Court will generally not accept an estate filing for a decedent whose domicile is New Jersey.

The commencement of a proceeding to initiate the settlement of a decedent’s estate requires a determination of the proper Court to accept the filing of papers.  Upon the death of a decedent, it is first necessary to find whether the decedent had prepared a Last Will and Testament or died intestate.  This information will allow a petitioner to properly prepare either a petition for probate to receive letters testamentary or a petition for letters of administration.

Additionally, a finding must be made before a filing as to the jurisdiction in which the decedent was domiciled.  Domicile involves more than just residence.  A person can have multiple residences in different states or even countries.  However, there is only one place of domicile which is where a decedent maintained his primary home.  Usually domicile is easy to locate since a decedent would file taxes, have a place of business or employment, maintain bank accounts and have other local connections.  There are occasions when such a determination may be more difficult to finalize.  Domicile is important because the place of domicile, for the most part, will determine the local estate laws which apply to the estate.  Also, the Court in the place of domicile is usually the proper forum to file the estate proceeding.  The New York Probate Lawyer Blog has discussed the issue domicile in earlier blog posts.  Disputes regarding domicile may involve substantial issues of estate rights.  For example, a spousal right of election may have different benefits in one jurisdiction as opposed to another.

In addition to domicile, an issue may arise as to the appropriate local Court to file the estate papers.  Thus, when there is a domiciliary of New York State, is it proper to file papers in the Queens Surrogate’s Court, or should the papers be filed in Manhattan Surrogate’s Court?  Again, a review of the decedent’s domicile location becomes important.

The administration of an estate in New York requires that the Court find that it has jurisdiction to consider the matter being presented to it.  Whether the case involves the probate of a Last Will and Testament or the settlement of an intestate estate, the Surrogate’s Court must be satisfied that it has the requisite contacts to accept the matter for determination.  Such a decision is controlled by the issue of domicile, since the Court has jurisdiction over a New York domiciliary at the time of death.

Determining domicile is not always easy.  Simply stated, domicile is the place where a person has a permanent home as opposed to a person’s residence.  There can be many residences for a decedent but only one place of domicile.  An individual’s intention is an essential part of finding out where a decedent’s domicile is located and the Surrogate’s Court typically reviews many factors along with the applicable laws and rules.  The New York Probate Lawyer Blog has published many articles regarding estate settlement and domicile.

The complexity involved in determining a decedent’s domicile is shown in a recent Orange County estate case decided by Orange County Surrogate Timothy McElduff on July 20, 2021 entitled Matter of Estate of Matarazzo.  In this case, the decedent died in 2020.  She had lived for many years in Malverne, New York, but sold her New York home in 2015 and then went to live with a son in New Jersey.  However, she used the address of another son in Greenwood Lake, New York to receive correspondence and file New York tax returns.  In 2018, the decedent began to reside in a senior center in Pennsylvania, where she continued to reside until her death in 2020.

After a person dies it is necessary to determine whether it is necessary to file a Surrogate’s Court proceeding.  Such filing would be in the form of either a Probate Proceeding or an Administration Proceeding.  The Surrogate’s Courts are located in the various counties in New York.  For example, there is the Brooklyn Surrogate’s Court, a Manhattan Surrogate’s Court and a Queens Surrogate’s Court.

An initial inquiry regarding a decedent’s estate concerns whether or not the person was a New York domiciliary.  Domicile is commonly known as the place where a person has a permanent home.  While a person may have a number of different residential addresses, he has only one domicile.

Domicile is important because it typically determines the local law that controls the disposition of an estate.  The New York Courts usually do not accept a case for filing absent a New York domicile or the presence of the decedent’s property in New York.  The New York Probate Lawyer Blog has published a number of articles concerning domicile and estates.