Question: My brother’s fiancée died in Georgia. Her family (brothers and mother) live in Kentucky. They want my brother to administer her estate. They are unsure about whether they file for this in Kentucky or if they need to travel to Georgia to do the filing. 

Loraine’s Answer: The place where a Will is offered for probate or an intestate estate is administered (where there is no Will) is generally the place where the deceased person had their principal residence (also known as the place of domicile) as of the date of their death. If your brother’s fiancée had her principal residence in Georgia, then the probate or estate administration will generally need to take place in Georgia. If her principal residence was in Kentucky and she was just in Georgia temporarily at the time of her death, then the probate or estate administration would generally take place in Kentucky. (There is an exception to this general rule for a person who owned real estate in Georgia but lived in a different state if no probate or estate administration is required in the state of domicile, but that’s not common.) 

For some people, it’s very clear where their principal residence is located. For others, not so much. However, several factors can help discern a person’s primary and permanent place of residence, such as: 

• Where the driver’s license was issued 
• Where they are registered to vote and where they generally voted 
• The address claimed as the address for income tax purposes 
• The state claimed as the principal residence for income tax purposes 
• Where the cars were registered 
• Where most of the day-to-day activities were located 

Owning real estate in different states is also a factor. If her principal residence was in Georgia and she owned real estate in Kentucky, then Kentucky may require a separate probate or estate administration for real estate owned by a non-Kentucky resident (this kind of secondary probate or administration is generally known as an ancillary probate). It may be possible for a Georgia-appointed estate representative to transfer the Kentucky property without getting appointed in Kentucky, however, depending on Kentucky law. And, if your brother’s fiancée was domiciled in Kentucky but owned real estate in Georgia, Georgia will generally allow the Kentucky-appointed personal representative of her estate to transfer the Georgia property without requiring a second probate or administration process in Georgia (although one could be done if desired). 

If your brother’s fiancée had a Will that nominated him as the Executor, he can offer the Will for probate even if her family does not want him to serve, although they could try to challenge the Will. If she did not have a Will, however, and her family wants him to serve as the administrator, then a majority of her heirs must agree to nominate him as the administrator. He will then need to file a Petition for Letters of Administration as the nominated administrator and get at least a majority of her heirs to sign the Petition consenting to it. Otherwise, he would not normally be a person who has the legal standing necessary to seek appointment as the administrator, unless he is a creditor of her estate. If they had been married before her death and he was a surviving spouse, he would have the first priority and automatically have the standing, but since he was not her spouse, he is not considered a legal relative and does not automatically have the standing to serve. 

If he wants to take the Executor or administrator role on, he should get an experienced probate attorney to help him avoid the many pitfalls that a probate or an estate administration can present. For example, if all of his fiancée’s heirs agree to having him serve as the administrator, he could also request that the probate court waive any requirement that he post a bond or file inventories and reports with the court, and he could request that the court grant him “certain powers,” which would give him the broadest possible powers available under state law and would allow him to act as administrator much more easily and carry out most or all of the needed tasks without having to seek court approval on a routine basis. 

Lastly, his fiancée’s family likely does not need to travel to Georgia to deal with her estate, even if your brother does not take on the administrator role. Most things can be done remotely, with needed signatures collected by mail, UPS, or Federal Express. 

Key Estate Planning Takeaways: For a non-family member to serve as an estate administrator in Georgia, a majority of the decedent’s heirs must generally select that person as the administrator. An estate must be administered, or a Will offered for probate, in the state where the decedent had his or her principal residence. 

This “Q&A with Loraine” blog series features answers based on responses from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.