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Where Do You Probate the Will?

Where do you probate the will? How does the court decide that question? A Florida court may have jurisdiction over the distribution of a decedent’s domicile at the time of his or her death if the decedent owned property in Florida at the time of his or her death. However, such jurisdiction is not necessarily exclusive. If the decedent died a domiciliary of another state but owned personal property in Florida, both states may have jurisdiction over the distribution proceedings. Thus, a Florida court’s determination of domicile does not relieve the court of jurisdiction over a decedent’s estate when the decedent owns property in this State. 

Florida Statute 731.201(13) (2023) defines domicile as a person’s usual place of dwelling and shall be synonymous with residence. Residence, in turn, is defined as a person’s place of dwelling. Florida Statute 731.201(34) Florida Statute (2023).   

The critical fact of domicile is the Decedent’s present intention at the time of his or her death, as domicile requires the present residence with positive or presumptive proof of an intention to remain there for an unlimited time. 

When a nonresident decedent, whether or not a citizen of the United  States, provides by will that the testamentary disposition of tangible or intangible personal property having situs within the state shall be construed and regulated by the laws of this state, the validity and effect of the disposition shall be determined by Florida law. The court may, if a decedent who was at the time of death a resident of a foreign country the court shall, direct the personal representative appointed in this state to make distribution directly to those designated by the decedent’s will as beneficiaries of the tangible or intangible property or to the persons entitled to receive the decedent’s personal estate under the laws of the decedent’s domicile.  

Florida Statute 733.101 establishes venue for probate proceedings in Florida:

1. The venue for probate of wills and granting letters shall be (a) in the county in this state where the decedent was domiciled (b) If the decedent had no domicile in this state, then in any country where the decedent’s Propety is located (c) If the decedent had no domicile in the state and possessed no property in the state, then then the county where any debtor of the decedent resides.  

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com 

This article is for informational purposes only and does not form an attorney-client privilege.