Opening the Estate: Where?

As explained in a previous post, an estate must be opened in the county of domicile of the decedent. While people may have many residences, each of us only has one domicile. The court will determine the domicile of the decedent by looking at the following:

1) The address used on government documents such as a drivers license and tax filings with the IRS. It is also important that the most recent address be reported properly on the death certificate for this reason.

2) The location where the decedent’s important mail was received, where the decedent was most involved in the community, where the decedent called “home.”

In the majority of cases, determining domicile is not a problem. Even those who are fortunate enough to have vacation homes or live in more than one state usually have documentation that establishes where they considered their primary residence, or domicile to be. This does, however become a big issue in two situations that are more common than many might realize:

INCAPACITY – If someone passes away after living in a nursing home, there is often confusion about in which county the estate should be opened. Is it the county where they originally lived or the county where they were in a long term care facility? The answer to that questions is determined by the decedent’s intent when they moved. For example, if someone is diagnosed with early Alzheimer’s and decides, on their own, to move into an assisted living facility where they later pass away then it is likely that they changed their domicile from the county where they originally resided to the county where they passed away at the time of the move. In a second example, if an elderly person becomes incapacitated due to dementia or Alzheimer’s and they are placed in a care facility with participating in the decision, then it is likely that their domicile does not change. The issue her is intent. Someone must have the intent to change their domicile and therefore anyone who becomes incapacitated for any reason is considered to be domiciled in the county where they resided at the time the incapacity occurred. An example of this rule can be found in the ruling of

MILITARY – Military personnel also provide a unique domicile issue. Again, the court will focus on intent. The general rule is that a member of the military, regardless of where they are stationed, is considered domiciled in the county where they resided at the time they enlisted. This rule is easily overcome by actions such as purchasing a home away from the military base or marrying someone in a location where they are stationed and expressing an intent for that location to be their “home.”An example of the military rule regarding domicile can be found at

The issue of where the estate is opened is important to the court because it is their responsibility to ensure that they have jurisdiction over the estate. If an estate is opened in the wrong county, creditor’s could claim they did not have proper notice and interested parties may unknowingly open a second estate in the other county. If everyone applies the rules of domicile correctly, then all parties will know where to look when trying to find someone’s estate.

 

 

Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.

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