Avoid Fighting Two Probates, Two Ways to Ensure a Will is Probated Where and When YOU Want!

A son and father were in dispute over their deceased mother/wife’s last will and testament. Issues included whether shewas domiciled in Florida or Pennsylvania, in a world where technical rules govern most things it may surprise you to learn that much of how probate is done depends on who files first, and where. Here are two ways to ensure you probate a will where you want and how you want.

• In the case of Perelman v. Estate of Perelman the wife was living in Pennsylvania, died at 90 and her son probated the will in Pennsylvania.
• The deceased husband attempted to probate an older will in Florida by arguing the 2010will was invalid because of undue influence.
• The son asked the Florida Probate court for a stay of the proceeding which means it would be in a sort of legal limbo until the Pennsylvania case was settled.
• The Florida courts denied his motion and made him litigate both cases (Pennsylvania and Florida) at the same time despite the fact that there were no assets in Florida.

How did this happen? Courts in the United States do not have exclusive areas of jurisdiction for the most part, in other words there are some overlaps. This is especially true between the different probate courts throughout the many states and territories. This issue is most common when people have property in multiple states or family spread over multiple states that an elderly parent may live with throughout the years. To deal with this courts employ a doctrine of priority.

• In short priority holds that a Court may (they do not have to) stay a proceeding if a nearly identical proceeding is in process through a court with competent jurisdiction.This is what the son wanted in this case, and the appellate court later held he was in fact entitled to a stay, he just never got one!
• What is there to take away from this? Just because the law guarentees you a right does not mean the court is going to hand it to you. Sometimes cases go up on appeal merely for the declaration that you had a right in the first place.

What good is this now for the son? Maybe he can get some fees from the parties who made him contest in multiple states at once, but I doubt it. The lesson is this (1) plan and (2) know your rights.

1. Plan: Do you know that another relative is going to try to probate the will in another jurisdiction by claiming the decedent had different residency? Consult with attorneys now and ensure this will not happen . Execute affidavits from your loved ones declaring the details you may not be able to prove after they are gone or risk that you will not prove it and face the consequences like the son in Perelman.
2. Know your rights: If the son in this case had an attorney with his salt the man would have properly plead his rights and they would have been protected. Here is my point, a court is not like a bestbuy, they will not simply tell you what you are entitled to and ask if you want it like an extra warranty, you have to fight for your rights. In order to know that, it helps to know what they are.

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