1) The address used on government documents such as a drivers license and tax filings with the IRS.

2) The location where the decedent’s important mail was received, where the decedent was most involved in the community, where the decedent called “home.”

In the majority of cases, determining domicile is not a problem. Even those who are fortunate enough to have vacation homes or live in more than one state usually have documentation that establishes where they considered their primary residence, or domicile to be. This does, however become a big issue in two situations that are more common than many might realize:

INCAPACITY – If someone passes away after living in a nursing home, there is often confusion about in which county the estate should be opened. Is it the county where they originally lived or the county where they were in a long term care facility? The answer to that questions is determined by the decedent’s intent when they moved. For example, if someone is diagnosed with early Alzheimer’s and decides, on their own, to move into an assisted living facility where they later pass away then it is likely that they changed their domicile from the county where they originally resided to the county where they passed away at the time of the move. In a second example, if an elderly person becomes incapacitated due to dementia or Alzheimer’s and they are placed in a care facility with participating in the decision, then it is likely that their domicile does not change. The issue her is intent. Someone must have the intent to change their domicile and therefore anyone who becomes incapacitated for any reason is considered to be domiciled in the county where they resided at the time the incapacity occurred. An example of this rule can be found in the ruling of

MILITARY – Military personnel also provide a unique domicile issue. Again, the court will focus on intent. The general rule is that a member of the military, regardless of where they are stationed, is considered domiciled in the county where they resided at the time they enlisted. This rule is easily overcome by actions such as purchasing a home away from the military base or marrying someone in a location where they are stationed and expressing an intent for that location to be their “home.”An example of the military rule regarding domicile can be found at

The issue of where the estate is opened is important to the court because it is their responsibility to ensure that they have jurisdiction over the estate. If an estate is opened in the wrong county, creditor’s could claim they did not have proper notice and interested parties may unknowingly open a second estate in the other county. If everyone applies the rules of domicile correctly, then all parties will know where to look when trying to find someone’s estate.

Related posts:

1. What exactly is probate?

1) There are a variety of reasons why people delay the opening of an estate, the most common of which is grief. It is absolutely understandable that when a loved one passes away, the last thing on your mind is hiring an attorney or locating your local probate court. And while that is perfectly understandable, failure to start the probate process quickly can cause problems. Take a week or two to deal with the most pressing issues and if you still don’t feel you a re ready to begin, ask a trusted friend or family member to help you.

2) In South Carolina, it is actually a misdemeanor to withhold a decedent’s last will from the court for more than thirty (30) days. This means that if you have the original will in your possession, you need to get it to the court promptly. Hiding a will is never a good idea as it leads to speculation, confusion and chaos amongst those who feel they might be inheriting from the decedent.

3) Failure to open an estate in a timely fashion may lead to another party getting priority to serve as Personal Representative. In fact, if you have not opened the estate within forty-five (45) days, a creditor can open it on your behalf. Again, if you are grieving and unable to deal with these issues, find someone to help you as having a creditor handle the affairs of the estate is never in anyone’s best interest (except theirs).

Once you have opened the estate, you can expect it to remain open for a minimum of eight (8) months, most likely it will take closer to a year or longer from start to finish. Even the best attorney can’t complete it in less time as the law requires the estate be open that long in order for creditors to have time to make claims for any money they are owed by the decedent. Here are a few more things to consider:

1) The eight (8) months begins from the date that you publish the court approved creditor’s notice in the local paper. So, just picking up the paperwork from the court is not enough, you must ensure the Personal Representative quickly gets that notice in the paper (some courts do this for you, others require you to do it on your own).

2) Attempting to convince the court that you already know everyone your loved one owed will never work, although just about every family has hoped to shorten the process by making this argument. The time set by law can not be waived, shortened, or changed for any estate.

3) Once you have opened the estate, your attorney should provide you with a general guideline of what you need to do and when in order to satisfy the courts. If you are attempting to handle the estate without legal guidance, make sure to ask the court for a list of their deadlines so that you are clear on what documents need to be submitted and when so that you don’t further delay the estate.

In closing, know that while good estate planning can eliminate many of the hassles of probate, nothing can change the court’s requirements for probating an estate. Only those who have no real property, no titles assets (cars, boats, mobile homes) and no personal property or assets that total above ten thousand ($10,000) can skip the formalities by using a process called a small estate, which will be the topic of a future post.

Related posts:

1. Pick Me, Pick Me! Who gets to be the Personal Representative of the estate? (Part I)
2. Personal Representative’s Duties: Duty to Inform
3. Who will be the Personal Representative? (Part II)