Legal Question in Wills and Trusts in California

If there is real property, you will certainly need to open a probate in the state where the real property IS. If that is California, then a probate will need to be opened in California. If there is no real property or if the total amount of assets is "small", you may not need to do that. Where someone dies is not the controlling factor of probate. It is WHERE are the assets and what type are they. Some assets have to be probated [real property] unless there is a JT; others, do not.

Real property is probated in the state where the real property is located, personal property is probated in the state where the decedent resided when he died.

The two previous answers were either given by attorneys who both studied and have practiced law only in California, or who have never studied or looked into probate law in other states. The answer to your question is not nearly that simple.

The Uniform Probate Code, unlike many other Uniform Codes, was only adopted by 16 states. Others have done a piecemeal, pick-and-choose adoption of some of the provisions. As a result, some states consider probate to be a proceeding about the person who died, called in personam, and others consider it to be a proceeding over the property, called in rem. California actually treats it as both, depending on the issue. When a person dies, primary probate jurisdiction is in the state in which the person was domiciled at the time of death, if it is an in personam state. California is an in personam state for purposes of primary jurisdiction. If the person has property in another state that is an in personam state as well, there is usually no need for a separate probate. California's probate orders can be enforced by the other state's process for enforcing sister state judgments and orders. If the other state is an in rem state for probate, however, then a separate probate in that state, called an ancillary probate, will be required. California treats itself as an in rem state in that situation. So, even though California is an in personam state, if a person dies domiciled in any other state, California requires an ancillary probate, even if the other state would not if the situation were reversed (California has a LOT of laws that thumb their nose at other states like that for some reason).

To sum up then: If the decedent lived outside California, with property in California, a California ancillary probate will be required no matter what. If the decedent lived in California with property outside California, you have to check the other state's jurisdiction rules to find out if an ancillary probate will be required or not. They may be willing to simply enforce a California court's rulings.

I got so busy correcting the other attorneys, I failed to answer your direct question, although you probably can figure it out. The answer is you will need a California probate, due to our silly in rem rule for property in California. If there are no meaningfull assets in Utah and no meaningful intangible assets like brokerage accounts, etc., or all intangible assets are allocated outside of probate by joint tenancy or pay on death clauses, you may be able to avoid the Utah probate and just do the California one. You'll need to talk to probate attorneys in each state to get a conclusive answer on whether you'll need to file in Utah.

Mr. McCormick is the one who needs correcting. California does not have jurisdiction over real property not situated within its borders. The sister state judgment act has no application to probate matters.

I suggest you speak to a competent probate attorney, if you do not believe me, and inform that lawyer that you have what is known as a "conflict of laws" problem.