I don’t think I am telling you anything you don’t already know.  People are moving out of California.  This post is not about that phenomenon or the political ramifications or reasons.  This post is focused on what do you do if a loved one moved out of California and then died.  So let’s talk about this….

The first issue is RESIDENCY.  If a person leaves California, with the intent of relocating to another state, I would say they arguably become a resident of the new state while they are in transit to the new state. In a lot of cases it may be debatable which state you file in. The key is talking to a highly knowledgeable and experienced probate attorney to get the correct information.

Though I am a California probate lawyer I will recommend the other state 9 out of 10 times if there is a choice where to file and no need to file in CA. This depends on the assets really. The reason I say 9 out of 10 times is because the odds are good that any other state is going to have more efficient and cheaper probate rules!

The other issue is what assets are there at the time of death.  Did they buy a property in the new state and sell CA before dying?  Or, do they still have the California property and were intending to rent in the new state? This is going to be a huge key in which state to file in. The general rule is that some type of probate filing is required when there is real estate in a state. That is, if your loved one owned a home in California then some type of probate filing will be required in California.  Likewise, in almost every other state if real estate was owned in another state then some type of probate work is going to be needed in that state. Again, talk to an expert!

What about filing in both states?  Yes, that is required some times.  In addition to the type of assets the other issue is if there is a will or not.  The laws of each state need to be considered before lodging the will with a court in my opinion but do be mindful of any filing requirements. For example, in California you are technically required to lodge the original will with the probate court within 30 days of death.

I haven’t used the word yet but these type of probate situations are often, what is referred to as, an ancillary probate.  An ancillary probate is generally filed in a secondary state when filings are required in two different states for whatever reason.

The key to an ancillary probate is to talk to a probate expert in both California and the other state to compare and contrast the options and requirements. Filing in the wrong state can be costly so get it done right the first time!  We have performed a significant number of ancillary probates in California.  Contact us to discuss!

-John Palley

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