Probate in state with only probatable asset, not in state of domicile
January 19, 2021 12:28 PM   Subscribe

Single parent died in Oregon. At this time and most likely forever only probatable assets are a rental house in NY State and a Citi checking account of approximately $1000. I asked local NY lawyer about ancillary probate and they said that I should just probate in NY State as a checking account has no particular locus. Also heirs are my sibling and me 50/50 no drama, no outstanding bills, will be a tax refund Fed and State on her last tax returns 2020.

While this sounds good to me and the only thing I could see hurting us down the line would be some grifter coming out of the woodwork in the future and I object to paying for 2 probates in order to probate a $1000 checking account I thought I would ask if anyone has had a similar situation/insight beyond "talk to a lawyer," which I might pay for if the NY lawyer doesn't convince me. (Early days yet, still don't have death certificates.)

Parent lived in Oregon for approx 6 years before death and filed taxes here so I don't see how you could say she wasn't domiciled here. There is no will so I would be getting appointed administrator in NY. I live in Oregon. I will have to file an estate return as it will receive more than $600 in gross income by the time I get it filed, (tax refund, rental income.) I am still working out which state would get any income taxes from the estate, I assume the estate would be located where it is being probated but Oregon might disagree heartily.

Bonus question: has anyone inherited a rental house with a due on sale clause in the mortgage and been able to assume the mortgage under the Garn-St. Germain Depository Institutions Act? It doesn't seem to say anything about having to live in the house.
posted by Pembquist to Law & Government (1 answer total) 1 user marked this as a favorite
The normal rule is that any property owned by the decedent is regarded as subject to probate where he lived, but that is not inflexible. The suggestion by the lawyer is sound and based on common sense. The New York court will probably not even blink at including the small account when the real estate is probated, when both heirs are in agreement.
posted by yclipse at 1:19 PM on January 19

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