What state laws apply to a decedent’s Will?
Well, it depends.
First, many states have laws which require the filing, recording or lodging of a Will after the decedent’s death. On that issue, the law of the state where the decedent was residing applies.
But where do you bring the probate action?
Real property must be probated in the courts of the state where the real property is located. For instance, if a Colorado resident dies owning real and personal property, a probate proceeding is likely to be required in Colorado as well as the state where the real property is located. If the Colorado resident owned a $250,000 brokerage account and a piece of real property in California, it is possible a probate proceeding would have to be brought in both Colorado (to probate the personal property) and California (to probate the real property located there). In this instance the California proceeding would be considered an “ancillary” probate proceeding with all of the assets being ultimately turned over to the Colorado court for final disposition.
In the above example, if the assets of the decedent, other than the real property, were not of great enough value to require a probate proceeding, then the only probate proceeding required would occur in California. But then, what law would apply? If the decedent’s Will included a provision providing which state’s laws would apply, that provision would prevail.
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