Deciding Where to Open Probate When Someone Dies in Another State — Illinois Law

Disclaimer: This article explains Illinois probate principles for educational purposes only. It is not legal advice. For help on a specific case, consult a licensed Illinois attorney.

Detailed Answer — Which State’s Court Should Handle Probate under Illinois Law?

Under Illinois law, the primary probate case should be opened in the state where the decedent was domiciled at death — that is, the state the person treated as their permanent home. Illinois follows the general rule that domicile, not the place of death, controls which jurisdiction has the main authority to administer the estate. See the Probate Act of 1975 (755 ILCS 5/), the Illinois statutory framework governing wills, administration, and ancillary proceedings: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2107&ChapterID=60

If the decedent was domiciled in another state but owned property located in Illinois (real estate or certain tangible property), Illinois courts can open an ancillary probate or ancillary administration limited to the Illinois assets. The out-of-state personal representative or executor typically must obtain Illinois ancillary letters to deal with property located here. The Probate Act provides the framework for opening a probate or ancillary administration in Illinois. See 755 ILCS 5/ and related provisions at the Illinois General Assembly site: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2107&ChapterID=60

Key points in plain language:

Primary probate: Open in the state of domicile. If the decedent considered another state their permanent home, that state handles the main estate administration.
Ancillary probate in Illinois: Required if the decedent was not domiciled in Illinois but owned Illinois real estate or other assets that Illinois courts control.
Place of death vs domicile: Where someone died (hospital, vacation, visiting family) does not necessarily determine probate jurisdiction. Courts look at intent and connections indicating permanent residence.
Recognition of out-of-state appointments: Illinois generally recognizes letters testamentary or letters of administration issued in another state, but those letters may need to be filed and honored in Illinois or the personal representative may need to obtain ancillary letters.

How Illinois Courts Decide Domicile

Court factors focus on both physical presence and intent to remain. Common indicators include:

Primary residence and length of time living there.
Where the decedent was registered to vote.
Driver’s license and state-issued ID.
Where the decedent filed state tax returns.
Where family and business relationships were centered.
Location of the decedent’s personal belongings and declared residence on official documents.

No single factor controls. A combination of contacts establishes domicile.

Practical Consequences

If the decedent was domiciled in another state, you would normally open probate there first. Then, for any Illinois real estate, you would open an ancillary proceeding in Illinois to transfer title or sell the property.
If the decedent was domiciled in Illinois but happened to die while visiting another state, you would open primary probate in Illinois.
For personal property located in Illinois (bank accounts, vehicles, tangible items), the need for Illinois probate depends on who holds or controls those assets and the type of asset. Some assets pass outside probate (joint accounts, designated beneficiaries).

Common Hypothetical (Illustrative)

Imagine a person who normally lived in State A but died while visiting State B. Under Illinois law (applied hypothetically), if that person actually considered State A their permanent home, probate would be opened in State A. If that person, however, owned a house in Illinois, an ancillary probate in Illinois would be required to transfer ownership or sell the house here. Conversely, if the person was domiciled in Illinois but happened to die while traveling, primary probate would be in Illinois.

Helpful Hints

Gather documents that show domicile: leases, utility bills, tax returns, voter registration, driver’s license, and healthcare directives.
Find the original will (if any). The will often directs where to open probate and who to appoint as personal representative.
Obtain multiple certified death certificates early. Courts and financial institutions require them.
Inventory assets by location. Identify any property or accounts physically located in Illinois (real estate, vehicles, bank accounts kept at Illinois banks).
Contact the probate court clerk in the likely state(s). Clerks can explain filing requirements, local forms, and whether ancillary probate is necessary.
Consider whether simplified or small-estate procedures apply before opening a full probate. Illinois law provides simplified options in some circumstances; check the Probate Act for qualifying rules: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2107&ChapterID=60
If someone already obtained letters in another state, check whether Illinois will accept those letters or whether ancillary letters are necessary to act here.
Keep careful records and receipts of estate transactions and communications with courts, banks, and other institutions.
Consult a licensed Illinois probate attorney for guidance tailored to your facts, especially when out-of-state elements or real estate in Illinois are involved.

Final note: This summary describes general Illinois probate rules and common practices. It is not a substitute for legal advice about a particular estate. An attorney can review facts like domicile evidence, asset locations, and the will to advise whether to open a primary or ancillary proceeding in Illinois or elsewhere.