October 12, 2012

Where to File Probate

When a person passes away, in legal speak the "decedent," and leaves an estate that requires probate, the personal representative needs to file for probate in the appropriate court.  In California, there are 58 probate courts as there are 58 counties in the Golden State.

Many non-attorneys are often very confused about the jurisdictional requirements of courts. Certain cases may only be heard in federal court whereas other cases are only heard in state court. Furthermore, many California counties have specified courts for specified cases. In Santa Clara County, we have a probate court, criminal court, family court, civil court and small claims court. Each of these aforementioned courts is located at a different location, or at the very least a different department. I periodically have cases at the downtown superior court in San Jose, 191 N 1st Street San Jose, CA 95113, and frequently hear people passing through the metal detector that they have gone to the wrong courthouse as explained to them by the sheriff. I find this rather baffling though because the ticket, summons, citation, etc. will state the location of the courthouse.

The threshold issue when determining where to initiate probate is to ascertain the decedent's domicile. Domicile is basically a person's residence plus the intention to remain there. If you purchased a home and occupy it, that basically establishes domicile. If you are couch surfing, that is probably not enough to establish domicile. 

If the decedent was domiciled in California, then "the proper county for proceedings concerning administration of the decedent’s estate is the county in which the decedent was domiciled, regardless of where the decedent died." Prob C § 7051. For instance, I received a call from somebody a few years ago who told me that his brother had passed away in Mexico on vacation unfortunately. He had lived in an apartment in Newport Beach, CA for a couple of years. The appropriate court to file for probate was Orange County.

If the decedent was not a California domiciliary, but leaves assets in the county where they died, then such county is the appropriate one. Prob C §7052(a). For instance, assume Tom Reddick, a Florida domiciliary is vacationing in the Napa wine country and tragically passes away in a hot air balloon accident. Prior to his death, Tom purchased a vacation condo in Calistoga, CA. Probate would need to be filed in Napa County.   

Conversely, if the non-domiciliary decedent died outside the county where they held assets, then the county  in which assets are located is the appropriate one. Prob C §7052(b).  From above, assume Tom passed away while skiing in Lake Tahoe, which is located in El Dorado County. Here probate should be filed in Napa County not El Dorado County.

While this might be a technical and mundane issue, it is nonetheless important because you cannot start the process until you figure out the right court to initiate probate.