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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Domicile: Where to File Probate

3:16 PM
Merri Rudd

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 to vote?
  • Is this their permanent address?
  • Where is their vehicle registered?
  • 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?

Q: Is a will valid in New Mexico if it is signed and witnessed but not notarized? Thank you! J.W.

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 

Appeared September 16, 2004, Albuquerque Journal, Business Outlook 
Reprinted with permission

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