What Is an Affidavit of Domicile?

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 What Is Estate Law?

Estate law is a subgenre of property law that governs how an individual’s estate is managed. This includes overseeing how that person’s property is managed in their lifetime, as well as after they have died or have become incapacitated. The term “estate” refers to an individual’s personal belongings, real property, cash, investments, and any intangible assets (this could include patents or copyrights). Any personal debt and taxes owed are also included as part of the estate.

Estate law often overlaps with laws concerning wills and trusts, as well as the policies that govern estate planning.

As estate law is a broad field of law, it covers various matters. Some of the most common examples include:

  • Estate Planning: Estate planning serves as a guide to others regarding how a decedent’s property will be distributed upon death or incapacitation. This includes will and trust issues, organ donation, legal guardian matters, medical treatments, and funeral arrangements.
  • Estate Administration: Estate administration specifically relates to managing and distributing a person’s estate after they die. This is handled by the person they named in their will as the designated “executor,” or if they died without a will, their property would be distributed according to the laws set out in their jurisdiction.
  • Duties of the Executor: An executor, also referred to as an administrator, is legally responsible for fulfilling specific duties related to the decedent’s wishes. The executor must make an accounting of all of the assets, pay the estate’s debts and taxes, sell any property that is needed if there is not enough cash available to pay debts or taxes and carry out the distribution of property as stated in the will.
  • Distribution of Property: How property is distributed to the rightful beneficiaries is the ultimate goal of estate planning.
  • Debt: Any debts that an individual still owes must be addressed, even after they have become incapacitated or deceased.

Estate laws are based on the local and state statutes in a particular jurisdiction. As such, they will often vary depending on the state involved.

What Is an Affidavit of Domicile? When Is an Affidavit of Domicile Needed?

Under estate law, an affidavit of domicile is a legal document that certifies the residence of a deceased person. This document has been notified and certified as true by the person signing it. Generally speaking, it is the executor of the estate who will be signing the document to confirm the deceased person’s principal residence.

This specific type of affidavit includes important information such as where the deceased person lived and for how long. This information can be important because it can often determine which state’s laws apply to the case. If an individual owns homes in two or more states and dies in a third, it could be difficult to know which state’s laws should apply to the handling of the will. The affidavit of domicile establishes which state is the decedent’s home state, and it is that state’s laws that will guide the management of the will and estate.

An affidavit of domicile is required anytime there must be legal proof of the deceased person’s residence. For example, such an issue would arise when the executor needs to transfer certain assets that the person left behind, especially stocks or securities. Frequently, the broker who processed the stocks may require an affidavit to verify where the person lived. Once the affidavit is provided, the assets can be transferred according to the will or the court’s instructions.

What If There Is a Legal Dispute Over the Decedent’s Will?

Will disputes or contests can often be resolved through an affidavit of domicile. For example, there may be a dispute over which potential beneficiary is entitled to a certain piece of property that wasn’t named in the will. In some cases, state laws can affect property distribution. The court and the parties will benefit from clear information regarding the decedent’s domicile.

What Are the Grounds for Disputing a Will?

The most common disputes over the contents of a will are between named beneficiaries. However, the will may also be disputed by individuals or entities that have not been named as beneficiaries but who nonetheless believe they are entitled to a portion of the decedent’s estate.

There are many potential grounds for disputing a will. A few examples of such circumstances include:

  • Beneficiary believe that the asset or property gift given to them in the will was not the distribution, either in amount or type, which the testator meant to give them
  • The place of death of the decedent is unclear, in which case an affidavit of domicile would be appropriate
  • A beneficiary dies during the process of probating the will. To whom should the bequest be given?
  • A beneficiary predeceases the testator. What should be done with the property slated to be given to the beneficiary?
  • One or more items comprising the decedent’s property or assets do not physically exist at the time of the decedent’s death. An example of this would be when a decedent creates a will and leaves an item of jewelry to a person. The decedent then sells the jewelry without updating the will to reflect the fact that the jewelry is no longer part of the estate. Should the beneficiary be given something else?
  • One or more items of property owned by the decedent at the time of their death are not mentioned in the will, so it is unclear who should receive it.

If a will dispute cannot be resolved informally, it is generally resolved during the probate proceeding. While probate proceedings can be initiated at any time after the testator’s death, the proceedings may take months or even years. In the event of a dispute, the role of the probate judge is to apply the relevant law to meet the decedent’s wishes best.

How are Will Disputes Handled?

There is a specific process that must be completed before a dispute over a will may be adjudicated.

Upon the testator’s death, the will may be submitted to a special court to be probated or proven. To probate a will is to distribute the decedent’s property per the will’s terms. The probate proceeding is the means through which the judge gives legal approval to the distribution. This begins by submitting the will to the local probate court. Important stages in the probate process include:

  • Proving that the decedent’s will is legal and valid
  • Identifying and appraising estate assets
  • Managing the payment of any debts or taxes owed by the deceased person’s estate
  • Carrying out the deceased person’s instruction concerning the distribution of their estate to their heirs, including distributing real estate and personal property as defined by either the will or state law.

The will should contain a provision that names a specific person as executor. Whoever is named executor is responsible for filing a petition to probate the will with the probate court. That provision is accompanied by a notice of petition or notice of probate. This is an announcement that the will has been submitted for probate.

The purpose of publishing the notice that a probate petition has been filed is to provide notice to individuals with an interest in the estate that the probate process is being initiated. This generally includes all individuals, charities, companies, or others named as beneficiaries and every person or company to whom the testator owed money at their death.

Should I Hire a Lawyer Concerning an Affidavit of Domicile?

Because disputes are often difficult to resolve, you should consult with a local probate lawyer if facing any legal issues. As can be seen, a local attorney will be best suited to understanding the laws and requirements of your particular state, as well as how that may affect your case.

If you need to secure an affidavit of domicile, an experienced probate attorney can help you in that area as well.

An attorney can also represent you in court as needed.

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