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In What Jurisdiction is Probate of a Decedent’s Estate Proper?

Post Authored By: Brian M. Bentrup

In what jurisdiction should a decedent’s estate be probated? The answer to that question is, or at least should be, in the county in which the decedent made his or her primary residence, but that is not always the case. Jurisdiction should be determined by a thorough review of situs of the decedent’s assets and any county of any state in which the decedent may have resided.

That is the logic of a recent appellate decision rendered by Illinois’s Second District Appellate Court regarding In Re Estate of Johnny Huang, a/k/a Chung I Huang, Deceased. That decision examined the principles of probate jurisdiction and the Second District published a rare appellate opinion because of the significant precedential value.

The facts are relatively simple, but the law and analysis are not. The decedent, Johnny Huang, a/k/a Chung I Huang (the “Decedent”) died in Thailand on May 23, 2019. The Decedent was a resident of California and executed a will in California leaving the residue of his estate to the Huang Family Trust. The Decedent did not own any assets that could be probated in California, but did own a piece of real estate in DuPage County, Illinois that was not part of the trust. Pluymert, MacDonald, Hargrove & Lee, Ltd. (“PMHL”) represented the Petitioner, I-Chih Amy Huang (“Huang”), and filed a petition in the circuit court of DuPage County to admit the Decedent’s will to probate. The DuPage County judge denied opening probate in Illinois, instead requiring probate first be opened in California as the Decedent’s county of residence at death. The DuPage County judge further directed that ancillary proceedings could only be initiated in Illinois after proof of admission in California. PMHL submitted case in law in support of Illinois as the proper jurisdiction to probate the Decedent’s estate, but the DuPage court did not find the case law sufficiently persuasive to probate the will in Illinois without first requiring Huang initiate proceedings in California.

The probate court responded that:

“[e]ven if the Court was permitted to exercise its discretion to open a non-ancillary estate in this court, the Court would not do so. All property, in whatever state it is located, belongs to the estate of the decedent. California has primary jurisdiction over Illinois assets because that state was the residence of the decedent, and the decedent’s creditors can claim against same in California. There are many reasons for probating the estate assets in the state of his residence. The Will is to be admitted there before requesting to admit ancillary jurisdiction here.”[1]

Huang moved to reconsider, arguing that the Decedent had no assets subject to probate in California and that Illinois has jurisdiction to probate the will because the Decedent left real property in Illinois. The probate court again found the argument unpersuasive and a timely appeal resulted.

The appellate court disagreed with the probate court, holding that the law favors admission of a will probate in Illinois.[2] The appellate court held that when a will meets the statutory requirements for admission to probate, a court cannot prescribe other conditions for its admission.[3]

Instead, the issue was whether the will could be admitted to probate in Illinois in the first instance or whether Huang must first open an estate in California, where the Decedent was domiciled at death.[4] The appellate court held that the admission of a will to probate is governed by statute[5] and cited to Section 5-1(b) of the Probate Act of 1975 (the “Act”), which provides that probate shall be in the court of the where if he or she had no known place of residence in Illinois, in the county where the greater part of his or her real estate is located at the time of his or her death.[6]

The appellate court, citing Sections 7-1 and 7-4 of the Act, determined that a will executed outside of Illinois in accordance with the Act is sufficient provided to admit it to probate in Illinois when the will is proved “in the manner provided by this Act for proving wills executed in this State.”[7] The appellate court recited the requirements of admissibility of a will in Illinois and found none lacking.

The appellate court then looked for guidance for how to construe the Act, examining the intent of the legislation and giving the statutory language its plain and ordinary meaning. The appellate court reviewed the construction of the relevant statutes under the Act as a question of law under de novo review. The appellate court found the Act was to be construed liberally in accordance with general principles of statutory interpretation.

The appellate court found that the plain language of Section 5-1(b) of the Act fixes venue in DuPage County and, further, provides that “if a testator has no known place of residence in this state, probate of his or her will shall be ‘in the county in which the greater part of his [or her]real estate is located at the time of his [or her] death.’”[8] The appellate court continued that it “is a rule that ‘[a]ny asset located in Illinois is sufficient to confer jurisdiction upon our courts to admit a will to probate and to issue letters testamentary.’”[9] The court ultimately found no issue with jurisdiction and venue being proper in DuPage County.

The second issue concerned the probate of foreign wills. The appellate court again looked at Section 7 of the Act and determined that the will satisfied the requirements for admissibility in Illinois. The appellate court then more closely examined whether probate must first be opened in California and second in Illinois, and opined that the admissibility of foreign wills by an original in Illinois would be unnecessary if “the law required an estate to be opened in the first instance where the testator was domiciled at death.”[10] A decedent may have an estate in each jurisdiction in which he or she left property, the estate established where the decedent was last domiciled is the “domiciliary estate,” any estate created elsewhere is “ancillary”, and, further, the administration in each state, whether domiciliary or ancillary, is “separate and complete in itself.”[11] The Decedent’s property in Illinois was thus subject to Illinois administration regardless of the Decedent’s domicile at death.[12]

The most significant line of the opinion provides that “[a] non-domiciliary state in which assets of the decedent are found has jurisdiction to grant original probate of a will”.[13] This is the premise for which Huang stands. If a decedent dies and has no assets that could be probated in the state of his or her domicile, then probate can be opened in the county of the state in which the assets are sitused. Here, the Decedent had no real property in California, all other assets (bank accounts, brokerage accounts, business interests, retirement accounts, life insurance, vehicles, etc.) were not part of the probate estate, and the only probate asset was real property located in DuPage County, Illinois. Thus, an original petition for probate in Illinois was proper, Huang needed not petition for probate in the county in California in which the Decedent resided, and the Illinois probate petition was not ancillary, but original. All of the formalities for admission of the will in Illinois were satisfied, and the court found no evidence that the testator was subject to fraud, menace, duress, misrepresentation, or undue influence when the Decedent signed the will.[14]

The judge in the probate court initially thought that the attempted filing in DuPage County was a bad faith attempt by Huang to avoid estate taxation. This reasoning is curious given that California does not impose a state estate tax whereas Illinois imposes a state estate tax on decedents’ estates that exceed $4 million.

The appellate court found no evidence to establish this support this reasoning. Rather, the appellate court ultimately reversed the probate court’s dismissal of the petition to admit the will to probate and remanded the matter with directions to enter and order admitting the will and to issue letters testamentary to Huang.

[1] In re Estate of Johnny Huang, a/k/a Chung I Huang, Deceased, 2022 IL App (2d) 210269 at ¶3, quoting the probate court

[2] Huang at ¶6, citing Estate of Tassaras v. Michas, 404 Ill. App. 3d 825, 828 (2010)

[3] Huang at ¶6, citing In regarding Estate of Park, 41 Ill. App. 3d 860, 863 (1976)

[4] Huang at ¶7

[5] Huang at ¶7, citing In regarding Estate of Smith, 282 Ill. App. 3d 389, 392 (1996)

[6] 755 ILCS 5/5-1 (West 2018) (emphasis Court’s own)

[7] Huang at ¶7

[8] Huang at9, citing 755 ILCS 5/5-1(b) (West 2018)

[9] Huang at ¶9, citing In re Estate of Zorn, 118 Ill. App. 3d 988, 990 (1983)

[10] Huang at ¶10

[11] Huang at ¶10, citing Wisemantle v Hull Enterprises, Inc., 103 Ill. App. 3d 878, 881-882 (1983)

[12] Huang at ¶10, citing In regarding Estate of Maslowe, 199 Ill. App. 3d 776, 780 (1983)

[13] Huang at ¶10, citing In regarding Estate of Nielsen, 320 Ill. App. 655 (1943) (emphasis Court’s own)

[14] Huang at ¶11

About the Author

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Brian M. Bentrup is a graduate of Loyola University Chicago where he triple-majored in Economics, Political Science, and Psychology. In 2015, he obtained his law degree from The John Marshall Law School. In law school, Brian was selected to be an extern for the Honorable Laura C. Liu in the Mortgage Foreclosure and Mechanics Lien Division as well as the Illinois Tenant Union.

Brian joined Pluymert, MacDonald, Hargrove & Lee, Ltd. in January 2018. His practice includes estate planning, probate and trust administration, and residential and commercial real estate. Brian also focuses on guardianships of minors and disabled adults and has been named to the approved Guardian ad Litem lists for Cook County, DuPage County, Kane County and Lake County. Brian dedicates time to pro bono work with Chicago Volunteer Legal Services representing or advocating on behalf of minors and disabled adults.

Brian is a member of the American Bar, Illinois State Bar, Cook County Bar, DuPage County Bar, and Chicago Bar Associations. He is also a member of the Justinian Society of Lawyers and the Phi Alpha Delta Law Fraternity.

Brian is licensed to practice in Illinois and Missouri. When not practicing law, Brian enjoys spending time with his wife, daughter and son, and exploring new and different culinary experiences.

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