Which State’s Probate Should You Open When a Parent Dies Out of State? — Guidance for New Mexico Readers

Short answer: Under New Mexico principles for deciding probate jurisdiction, the primary probate normally occurs in the state where the deceased was domiciled (their permanent legal home) at the time of death. If the parent was domiciled in North Carolina, you would typically open probate in North Carolina. If they were domiciled in Virginia, you would typically open probate in Virginia. If the estate has property in both states, you may need a primary probate in the domicile state and an ancillary proceeding where real property or other assets are located.

Detailed answer — how probate jurisdiction is determined (plain English)

Probate jurisdiction and venue generally follow two key facts:

• Domicile at death: Courts treat the decedent’s domicile (where they intended to make their permanent home) as the primary place to open probate. Domicile is a legal concept that combines physical presence and intent to remain.
• Location of estate assets: Any real property (land, houses) or tangible personal property located in another state often requires an ancillary or secondary probate administration in the state where that property sits.

So, with your hypothetical facts — parent died in Virginia but was living in North Carolina — ask these questions first:

• Where was the parent domiciled (their permanent legal home) when they died? Domicile matters more than the physical place of death.
• Where is the parent’s property located — especially real estate, bank accounts, vehicles, and titled property?
• Is there a valid will, and if so, where was it executed and stored?

If the answer shows the parent was domiciled in North Carolina, you typically open a primary probate in North Carolina and handle any Virginia-located assets by ancillary probate in Virginia (and vice versa).

What counts as evidence of domicile? Look for facts such as where the person:

• was registered to vote,
• held a driver’s license or state ID,
• filed state income taxes,
• listed as primary address on mail, bank records, medical records, or insurance,
• spent the majority of time and intended to remain.

States differ on how they treat specific contacts, so collect documents that show presence and intent.

When you might need ancillary probate

If primary probate occurs in one state but the decedent owned real property or titled assets in the other, the second state typically requires a local proceeding to transfer title or let local institutions release assets. Common examples:

• House or land in Virginia while domicile is North Carolina.
• Vehicles, bank accounts, or brokerage accounts titled in the decedent’s name in the other state.

Ancillary probate is usually smaller in scope: it recognizes the primary court’s appointment of a personal representative and focuses on transferring in-state assets.

Practical steps to decide where to open probate

1. Gather the will (if any) and multiple certified copies of the death certificate.
2. Collect records that show domicile (tax returns, driver’s license, voter registration, medical/residence records, mail, etc.).
3. Inventory assets and note which state they are located in (real estate, bank accounts, vehicles, safe deposit boxes).
4. Contact banks, title companies, and the DMV in each state to learn their policies for releasing funds or transferring title.
5. Consult an attorney licensed in the state where probate would likely be opened (the presumed domicile state). If the estate has assets in multiple states, consult counsel in each relevant state or an attorney experienced with multistate estates.
6. Ask whether small-estate procedures in either state will avoid full probate (many states have affidavits or simplified administration when the estate value is low).

Costs, timing and strategy

Costs and timelines vary by state. Opening probate in the domicile state usually centralizes the administration. If the estate owns real estate in another state, expect additional filings and fees for ancillary probate. Sometimes families open an initial limited probate to access urgent assets (pay bills, cover funeral costs) while arranging the main administration.

New Mexico resources and statutes

Because rules differ among states, you should review New Mexico’s probate materials if you are a New Mexico resident seeking general guidance. See New Mexico’s probate resources for forms and the statewide explanation of procedures: https://www.nmcourts.gov/self-help/probate/. For the New Mexico statutes that govern probate and administration (the Uniform Probate Code and related provisions), see Chapter 45 of the New Mexico Statutes: https://www.nmlegis.gov/Sessions/Statutes/Chapter/45.

Note: If the deciding states for probate are Virginia and North Carolina, you (or your attorney) should review the probate/ancillary administration rules and small estate thresholds in those two states as well.

Helpful hints

• Do not assume the place of death decides probate. Domicile is usually controlling.
• Start collecting proof of domicile immediately — it can be decisive and is often documentary (tax returns, ID, voter registration, medical records).
• If the estate is small, check for simple affidavit or small-estate procedures in the relevant states before pursuing full probate.
• If there’s a will, open probate in the domicile state named by the decedent (unless facts strongly show a different domicile).
• Talk to attorneys licensed in the state where you plan to open probate; rules and fees vary widely.
• Get several certified death certificates at once; many institutions require originals.
• Be cautious about signing documents that transfer real property without court approval or counsel — mistakes can cause title problems later.
• If assets cross state lines, budget for ancillary proceedings and possible duplicate filing fees.

Next steps: Gather the will (if any), certified death certificates, and documents showing where the decedent lived most of the time and intended to make their home. Use that evidence to determine likely domicile. Then consult an attorney licensed in the likely probate state to confirm strategy and to open the correct probate or ancillary proceeding.

Disclaimer: This article explains general principles and practical steps. It is educational only and not legal advice. Laws vary by state and facts matter. For guidance specific to your situation, consult an attorney licensed in the state where you think probate should be opened.