the Probate Judge—Domicile: Where to File Probate
Rudd, appeared September 16, 2004, Albuquerque Journal, Business Outlook
Reprinted with permission
- Editor's note: This
column may not be quoted or reproduced in whole or part without express written
permission of the author.
Q: I have power of attorney over my sister's estate and am executor of her
will. She is in a nursing home and her expenses are being paid from her assets.
The power of attorney and will were drawn up in Pittsburgh, Pennsylvania,
where she lived for many years. She is confined to a nursing home in Kansas
City, Kansas, near her sister. I live in New Mexico. Must the will be probated
in the state in which she is residing, or in Pennsylvania, or in New Mexico?
B.G., Grants, NM
Although I am not familiar with the laws of Kansas or Pennsylvania, a probate
case, if needed, is usually filed in the county or judicial district where
the decedent was domiciled at the time of his or her death. This is the rule
in New Mexico and many other states.
Also, in our state, a probate for out-of-state decedents who owned property
in New Mexico may be filed in any New Mexico county where the decedent's property
was located at the time of his or her death.
Domicile is different from residency. Domicile is a person's usual and permanent
place of residence. Knowing a person's domicile helps one choose the correct
court in which to file a probate case.
Questions that help determine a person's domicile include:
- Where is the person registered
- Is this their permanent
- Where is their vehicle
- From what state is their
driver's license issued?
- Is this the place they
intend to return to, even if they currently reside elsewhere?
- From which state do they
file their income taxes?
- Where does the person
consider his or her permanent place of residence?
Depending on how you
answer the above questions, your sister's domicile could be Kansas or Pennsylvania.
Once you choose her state of domicile, you might check with an attorney
about that state's probate laws and whether a probate is necessary after
your sister's death.
The domicile of the personal representative (executor) of a will is irrelevant.
So New Mexico would not be the proper state in which to file your sister's
probate, unless she were domiciled here.
Q: Is a will valid
in New Mexico if it is signed and witnessed but not notarized? Thank you!
Readers who took the April 1st pop quiz know the answer to this question.
In New Mexico a will with two witnesses' signatures, but no notary, is valid.
Notarization of a will is optional, not required. Remember that in New Mexico,
the testator and two witnesses must all stay together and watch each other
sign the will.
2004, Merri Rudd & Albuquerque Journal, All Rights Reserved