Tuesday, June 11, 2013

I'm A Bit Mystified

My stepmother-in-law died a few weeks back.  Her will was written up by lawyers in Orange County, California -- but because she died in British Columbia, it appears that the will has to go through probate there.  Unfortunately, British Columbia is severely backlogged, and they will require at least four months, a $200 filing fee, and hiring a Canadian lawyer, before they can issue the letter for the executor of the estate (a lawyer who is a cousin of my wife).

I am confused: shouldn't the state where the will was originally written, and when presumably has some sort of court of jurisdiction specified, take precedence over the location of the decedent's death?  And doesn't this all pretty destroy most of the advantage of having a will?

UPDATE: It appears that while this was organized as a trust, when the money was put into Charles Schwab, it was not put in as a trust account, hence the complexity.  Does anyone have a British Columbia probate attorney that they trust?


Robin said...

I don't know Canadian law, but in the US, probate occurs in the state where the deceased was resident when they passed away.

Sometimes, subsidiary actions have to occur in other states where real estate is located.

And many states have some form of small estate where formal probate is not required but some form of affidavit will suffice for collecting property. The actual definition of small estate varying state by state.

clark myers said...

Might consider consequences of making that the rule such as the effect of forum shopping by writing the will as a non-resident. Generally the will should I think be probated at least where the decedent is domiciled which is often but not always the residence and place of death. Where a person dies away from home the home might well be preferred. Where a person has moved the home might still be preferred.