Disclaimer: This is general information and not legal advice. I am not a lawyer. For decisions about opening probate in a particular state or filing documents in court, consult a licensed attorney in the state where you plan to act.
Detailed Answer
Short answer: Under Delaware law, probate jurisdiction follows the decedent’s legal domicile at death and the location of the decedent’s assets. If a person died while physically in one state but had their legal residence (domicile) in another state, you generally open probate in the state of domicile. Delaware courts will only handle a Delaware probate if the decedent was domiciled in Delaware at death or owned property located in Delaware that requires a local probate or ancillary administration. For full statutory context, see Delaware Code, Title 12 (Decedents’ Estates): https://delcode.delaware.gov/title12/.
How this rule works in practice
- Legal domicile matters. Courts look to the decedent’s domicile — the state they considered their permanent home, not merely where they were physically when they died. Indicators include where they voted, filed taxes, held a driver’s license, maintained a primary residence, and where they intended to return.
- State of death is not always controlling. Dying in a state (for example, while traveling or hospitalized) does not automatically make that state the decedent’s domicile.
- Real property follows the laws where the property sits. If the decedent owned real estate in a state, that state often requires an ancillary probate or local procedure to transfer title, even if the primary probate happens elsewhere.
- Personal property typically follows domicile. Banks, investment accounts and other personal property often get handled through probate in the decedent’s domicile state, although some institutions will accept an out‑of‑state executor’s letters or require ancillary recognition.
Applying the rule to a multi‑state situation
If a parent died physically in State A but their legal residence (domicile) was State B, open primary probate in State B. If they owned property or accounts in other states, you may need ancillary probate there. Under Delaware law, the Delaware probate system would only be the proper primary forum if the decedent was domiciled in Delaware at death. If they were domiciled in another state, Delaware would not be the correct primary probate forum, though Delaware courts may be asked to recognize a foreign probate order or handle Delaware-located assets.
Examples (hypothetical)
- Example 1: Decedent lived and paid taxes in North Carolina but died while visiting Virginia. Primary probate should be opened in North Carolina (their domicile). If they owned Virginia real estate, an ancillary proceeding in Virginia may be necessary to transfer that real estate.
- Example 2 (Delaware context): A person died while traveling in Virginia but was legally domiciled in Delaware. Open probate in Delaware. If they also owned a house in Virginia, you likely need an ancillary probate in Virginia for that property.
Recognition of other states’ probate orders
States typically give full faith and credit or otherwise recognize probate and letters testamentary/administration issued by another state. If you obtain primary letters in the decedent’s domicile state, many out-of-state institutions will accept certified copies, but courts and institutions sometimes demand ancillary filings or local counsel to effect transfers of local assets.
Where Delaware law specifically comes into play
Delaware’s statutes governing decedents’ estates and administration procedures appear in Delaware Code, Title 12. Those statutes set out how personal representatives get appointed, how wills are proved, and how administration proceeds in Delaware courts. Review Title 12 for Delaware’s procedures and requirements: https://delcode.delaware.gov/title12/. If you plan to open probate in Delaware or need an ancillary administration there, those provisions will control the Delaware process.
Helpful Hints
- Confirm domicile first. Collect proof showing the decedent’s primary home: tax returns, voter registration, driver’s license, lease or deed, employment records, and the address used for mail and bills.
- Locate the original will. The jurisdiction where the will should be probated is usually the decedent’s domicile. If you cannot find a will, the intestacy rules of the probate state will control distribution.
- Inventory assets by location. Make a short list showing where real property, bank accounts, retirement accounts, and vehicles are located — county and state for real estate matters.
- Talk to the likely executor or personal representative. If a will names an executor, that person typically petitions the probate court in the domicile state to be appointed.
- Expect ancillary probate for out‑of‑state real estate. If the decedent owned real estate in another state, plan for a separate filing in that state to clear title.
- Check small‑estate and affidavit procedures. Some states allow simplified transfers for small estates without full formal administration; check the probate rules where you will act.
- Obtain certified copies of probate orders. If you open probate in one state, get several certified copies of letters so banks and other institutions in other states can accept them.
- Hire local counsel where necessary. Probate and real property transfer rules vary by state. When assets sit outside the primary probate state, local counsel in those states can advise on ancillary filings or title issues.
- Act promptly. Banks and courts have deadlines and time-sensitive procedures (notice requirements, creditor claim windows). Missing a deadline can complicate administration.
Next practical step
Start by confirming the decedent’s domicile using documents listed above and locating the original will. If the decedent’s domicile turns out to be a state other than Delaware, open primary probate there. If the decedent was domiciled in Delaware or owned Delaware real property, consult Delaware statutes in Title 12 and a Delaware probate attorney to begin the Delaware process: https://delcode.delaware.gov/title12/. If you need help locating an attorney, contact the state bar association in the state where you will file.
Remember: This information explains general rules under Delaware law and common interstate probate practices. It does not replace advice from a qualified attorney familiar with the specific facts and with the probate courts involved.