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If decedent dies in SC, but all her real and personal property is in Illinois, where should probate be filed?

Austin, TX |

My mom (divorced & 77) is very ill in S. Carolina; death imminent. Until 2 weeks ago, she was lifelong resident of Illinois, location of her condo & personal property. On 6/3/13, we had her medically evacuated to SC so brother & sis-in-law could oversee her care; constant travel to IL got too stressful. I, her daughter, live in TX and am her POA. I've been handling her affairs since April 2013. Her 1986 will names me Executrix and brother & I are named as equal beneficiaries of her estate. On her death, won't probate need to be filed in IL? She never established SC residency, apart from her very ill body being in a SNF -- now hospital -- bed there for the past 2 weeks. IL condo is in her name (no mortgage) & has to be sold. Bro & I named beneficiaries on all her IRAs, life insurance, etc.

Attorney Answers 4


  1. Probate is always filed first in a person's "domicile," which is normally the last state they lived in with the intent to make a permanent home there. If that person has real estate or physical property located in any other state, they need to get papers from the court and establish what is called "ancillary probate" in those other states.

    Certainly, the caretakers of an incapacitated person have the ability to change the person's domicile, so I don't think either SC or IL would deny probate. Given the facts, I'd suggest treating Illinois as your mother's domicile and opening just the original probate estate there. Hire an IL attorney to handle the claims and hearings and you may be able to avoid traveling North altogether.

    Attorney Rosenberg is admitted to practice in Connecticut and Massachusetts, and currently practices in South-Central Connecticut with an emphasis on estate planning, elder law, probate, and tax matters. He may be contacted confidentially by email at Scott@ScottRosenbergLaw.com or by phone at (203) 871-3830. All correspondence through this website appears publicly, is not confidential, and does not create an attorney-client relationship between you and Atty. Rosenberg. Discretion should always be employed when posting personal information online. ~~~~~~~~~~~~~ All online content provided by Atty. Rosenberg on this and other websites is provided for general informational purposes only, and does not constitute legal advice. All content is general in nature. Attorneys are unable to ask the questions necessary to fully understand the legal issues faced by any particular poster. Postings and responses to questions only provide general insights on the topic discussed. They are not tailored to any reader’s specific situation, will not be accurate in all states, and are never updated or maintained to reflect changes in the law. No person should take action based on the information provided by anyone on Avvo.com or any other law-themed website without first consulting a local attorney with significant experience in your area of concern. Persuant to Circular 230, no online content may be used by any person to avoid taxes or penalties under the Internal Revenue Code.


  2. I believe IL would be the place of filing the probate despite her (eventual/expected) death in SC because SC was not her domicile, only her temporary residence while in process of recovery or as a convenience to the family in caring for her. I recommend you consult with an IL Probate attorney to get another opinion.


  3. I agree with Mr. Steingraber and Mr. Rosenberg. Consult an Illinois attorney that practices probate law in the county of residence or county where the real property is located.

    John Zgourides
    www.zgourides.com

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  4. To add to the answers above, there is a simple solution to avoid probate (as a practical matter) unless it is absolutely necessary, but you would need to contact an Illinois attorney ASAP. With respect to the IL real estate, your mother could execute a "beneficiary deed" (which is recognized in AZ) that would allow the property to pass without probate upon death. With respect to the personal items, you and your brother could divide them up informally amongst you. The IRA and the life insurance would pass outside of probate either way. If you and your brother get along and your mother has no significant debts (I.e., you and your brother could pay directly without the necessity of probate), it could be a simple and expedient alternative.

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