Detailed Answer
Short answer: Under Massachusetts law, the main probate case is normally opened in the decedent’s domicile (the state where they legally lived). If the person died in one state but was legally domiciled in another, you generally open the principal (domiciliary) probate where they were domiciled. A separate, smaller ancillary proceeding is usually required in any state that holds real estate in the decedent’s name.
This article explains how that principle applies when a person dies in one state but was living (and likely domiciled) in another. Although this guidance reflects general probate rules and Massachusetts statutes governing probate jurisdiction and administration (see Mass. Gen. Laws ch. 190B), it is not legal advice. Consult an attorney in the decedent’s domicile and in any state where real property sits before you act.
Key legal concepts you must know
- Domicile vs. physical location: “Domicile” is the person’s permanent legal home. It is possible to die physically in State A while being domiciled in State B. The probate court in the decedent’s domicile normally has primary authority over the estate.
- Situs of property: Real estate (land and buildings) is governed by the law of the state where the property is located. Many states require a local (ancillary) probate to transfer title to real estate.
- Ancillary probate: A limited probate opened in a non-domiciliary state to handle assets located there (commonly real property). It depends on the local rules where the asset is located.
Applying the rules under Massachusetts principles
If a parent died in Virginia but was living and intended to remain in North Carolina (i.e., their domicile was North Carolina), then:
- Open the primary probate in North Carolina (the decedent’s domicile). That court handles the overall estate administration: paying debts, distributing personal property, and handling bank accounts and retirement accounts governed by NC law.
- If the decedent owned real estate in Virginia (property with its legal situs in Virginia), you will likely need ancillary probate or another local process in Virginia to clear title or transfer that property. The ancillary proceeding is a limited administration that recognizes the domiciliary personal representative’s authority and deals only with the out-of-state property.
If you are located in Massachusetts and trying to advise family members about next steps, the same principles apply: domicile controls the primary probate; property situs controls where local transfer or ancillary probate is required. Massachusetts courts follow the state statutes and procedural rules that guide jurisdiction and administration; see the Massachusetts Probate and Family Court resources at Massachusetts Probate and Family Court and the governing statutes at Mass. Gen. Laws ch. 190B.
Practical steps to take now
- Determine domicile. Look at where the decedent voted, paid taxes, held a driver’s license, had a primary residence, and intended to live permanently. These facts determine domicile for probate purposes.
- Locate the will (if any). The will often names the personal representative and indicates the decedent’s intent about domicile and assets.
- Inventory assets by state. Make a list of bank accounts, investment accounts, vehicles, and real property and note the state where each asset is located.
- Contact the probate court in the decedent’s domicile to open the domiciliary probate. If the domicile was North Carolina, the North Carolina clerk of court / clerk of superior court handles probate. If the domicile actually turns out to be Virginia, open probate there.
- Retain local counsel where real property is located. A Virginia attorney can advise whether ancillary administration is required to transfer title to any Virginia real estate.
Timing, costs, and documents
Expect these common requirements:
- Certified death certificate(s).
- Original will (if any).
- Proof of domicile facts (leases, bills, tax returns, voter registration).
- Filing fees vary by state and by the size/complexity of the estate.
- Ancillary probate is typically simpler and cheaper than full administration, but it still takes time to clear title to real property.
What if there is no will?
If the decedent died intestate (without a will), the domiciliary state’s intestacy rules control distribution of personal property and debts. The person appointed by that court as administrator has the power to represent the estate in ancillary proceedings for out-of-state property.
When Massachusetts courts become involved
Massachusetts courts will only be involved if the decedent was domiciled in Massachusetts or owned Massachusetts-situs property. If the decedent’s domicile was outside Massachusetts and no Massachusetts property exists, you generally do not open probate in Massachusetts.
Important: This article explains general rules and steps. For precise jurisdictional decisions and to file correctly in the right state(s), consult counsel licensed in the decedent’s domicile and in any state where real property sits.
Disclaimer: This is educational information only and does not constitute legal advice. Consult a licensed attorney for legal advice about your specific situation.
Helpful Hints
- Collect multiple certified copies of the death certificate right away—courts and financial institutions require them.
- If unsure about domicile, gather documentary evidence (tax returns, mail address, employment, voter registration) to support the domiciliary probate filing.
- Open the domiciliary probate first. A domiciliary personal representative can often act in ancillary proceedings through certified letters or an exemplified copy of the appointment.
- Do not sign property transfer documents in the out-of-state jurisdiction until you have the appropriate court orders or ancillary letters of administration.
- Ask the domiciliary court for exemplified or authenticated letters of appointment to present to other states’ courts or title companies—this speeds ancillary matters.
- If the estate is small, check whether the state where the asset is located has a simplified or small‑estate affidavit procedure that avoids full ancillary probate.
- Contact local probate counsel in each relevant state early—procedures, timelines, and fees differ widely by state.
- Keep clear records and copies of all filings in every state involved. Coordination prevents duplicate work and conflicting orders.