Domicile – What it means & how it impacts inheritance

Your legal domicile can have big implications for family law, estate planning, probate, and even inheritance. Here's what domicile is, how to prove it, and details on affidavits of domicile.

What is Domicile

Domicile is a key concept in common law and is referred to in all sorts of contexts, including divorces, taxes, probate, and estate planning.

The concept seems straightforward, but like most law, the details are where things get messy.

This guide covers pretty much all of what someone (outside of a lawyer) needs to know about domicile.

Understanding domicile is particularly important when dealing with probate and taxes, and you’ll walk away with that understanding, know what an affidavit of domicile is, be able to tell the difference between residence and domicile, and much more.

Terms You May See Alongside Domicile

There’s a lot of jargon in probate. These are just fancy words that often mean simple things. 

Here are the main definitions you need to know, and if you have a more specific term you’re curious about, go check out the Atticus Glossary. 

You can also click the names of any of the terms below for more information. 

• Indicia - signs, indications, or distinguishing marks.
• Age of majority - when you legally become an adult — 18 in most states.
• Domicile of choice - a domicile chosen by someone of age and legal capacity and is established by intent to stick around & actually living in the place.
• Domicile of origin - Your de facto domicile that is determined by your birth, parents, and/or guardian(s).
• Affidavit of domicile - A form the executor or personal representative signs that legally verifies where the person who passed away lived. Can be required to transfer some financial assets.
• Domiciliary - of, relating to, or constituting a domicile (the adverb of domicile).
• ‍Probate - The legal process of distributing someone’s assets, paying final taxes, and dissolving someone’s financial life in the eyes of the state.
• Executor - The person in charge of “settling the estate.”
• Personal Representative - Another word of executor.
• Estate Settlement - The process of ending someone’s financial and tangible life beyond just probate. It includes all personal and financial tasks related to ending and distributing someone’s “estate.”

Domicile's Formal Definition

Let’s start with the wordier version.

(don’t worry if this feels a bit confusing, we have a more human breakdown in the next section)

Atticus’ Formal Definition of Domicile:

Domicile is the primary place that a person treats as their permanent home, or lives in and has a substantial enough connection with that the court uses it to apply certain laws and responsibilities. 

And this is the official definition from the IRS:

“Domicile is the place where a person has his or her true, fixed, permanent home and principal establishment and to which, whenever he is absent, he has the intention of returning.”

Your domicile is where you pay taxes, where local laws surrounding estates and residency are sourced and applied, where your last will and testament will be fulfilled, and determines which intestacy laws you are subject to if you die without a will.

Let’s break that down:

Domicile Explained

Domicile is just the place you permanently call “home” from a tax & legal perspective.

You can think of it as the place where you always feel like you will return to. It’s where you do all the important things like vote, pay taxes, register your car, bank, etc.

It’s where your life— lives.

And if you want to change yours, it’s not enough to intend to have a different domicile. It must be proved by your actions.*

Domicile is first determined by where you live with your parents or guardian. This is known as your domicile of origin.

So if you were born in Boston and grew up in a house there, your de facto domicile is Boston.

After you reach the age of majority (come of age), you naturally acquire a domicile of choice.

A domicile of choice is simply the domicile you gravitate toward as an adult, and once a domicile is established, it is presumed to continue unless it is proven to have changed.*

The thing is, what we call home and what the law considers home can be different.

Domicile vs. Residence

The words "residence" and "domicile", while related, aren’t the same thing.

A person may have several places of residence, but only one domicile, and it comes down to the types of actions you take somewhere and your intent surrounding it.

Your current domicile can be your residence, but you can have multiple residences.

The IRS gives this example:

You could have your domicile in Cleveland, Ohio, and a bona fide residence in Edinburgh, Scotland, if you intend to return eventually to Cleveland. The fact that you go and live in Scotland for a while does not automatically make Scotland your bona fide residence.

The same goes for states. Say you have a home in Boulder, Colorado that you spend a few months in each year but your “home base” is in Cleveland. You would have a residence in both Boulder and Cleveland, but Cleveland is your domicile.

And because domicile is often debated in disputes and affects laws you or a loved one are subjected to, it’s important to know how the court thinks about domicile so you can:

     1. Figure out a loved one’s domicile if they are deceased

     2. Know how to “prove” your own domicile 

Why Domicile Matters

Domicile determines what laws and processes you are subjected to for death taxes, alimony/child support, inheritance taxes, and more.

It’s broadly applied, but a lot of people come to understand domicile through their experiences with probate and estate settlement after someone passes away.

How Domicile Relates to Probate

When someone passes away, their location of domicile dictates what probate laws they fall under, for both interpretation of a valid will and for intestate (dying without a will).

So property and belongings pass on in different ways depending on someone’s domicile.

And if you’re serving as executor or personal representative (or plan on petitioning the court to become one), you need to petition the court that’s located in the state and county of where the person who passed away was domiciled.

So if your mother passed away in Knoxville and that’s where she has lived and voted in for decades, but you live in Buffalo, you need to work with the probate court in Knoxville, not Buffalo.

Also, here’s a useful guide if you could still use some clarity on what you’re responsible for during probate:

👉  What is Probate? Beginner’s Guide, Timeline, and More.

How Domicile Relates to Estate Settlement & Inheritance

Death taxes are applied via a person’s domicile, so the taxes an estate owes will vary depending on jurisdiction.

For example, only a few states have estate and inheritance taxes, but if your loved one is domiciled in a state that has them, you (or the executor) will have to pay them out from the estate’s funds.

Here’s a useful map to help determine if your estate, or an estate you are settling, has estate and/or inheritance taxes.

How the Court Determines Domicile

When a question regarding domicile comes up, the court examines objective facts centered around the taxpayer’s actions/intent to maintain a permanent home.

The Court looks at: 

• Whether the taxpayer is on temporary work detail, attending school, or stationed in the military
• Place of employment
• Location of personal residence(s)
• Location of family
• Where vehicles are registered
• Where taxpayer is registered to vote
• Whether taxpayer files a state tax return
• Other facts reflecting the taxpayer's involvement and ties to the community

As you can see, these are all examples of laying down roots in your community. Bouncing in and out of NYC a few times a year isn’t the same as voting in the city and commuting each day.

There is no exact criteria for determining domicile, but this is generally what the courts are looking for.

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How to Figure Out Someone's Domicile

If you’re an executor or personal representative trying to figure out where a deceased loved one’s domicile is, you should just apply the same criteria as the court! 99% of the time the answer is exactly where you think it is — wherever their home base was!

But if someone had a particularly complicated living situation, then that’s why lawyers exist. Your best bet with any legal question is to ask someone with the right expertise.

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How to Change or Prove Your Domicile

Even if you want to change your domicile quickly to save on taxes or for any other reason, you cannot do so with the signing of a form. Your entire life must reflect the change. Intent is not enough, as the courts like to say. 

So if you really want to change your domicile, you must prove that you are changing it by doing things like:

• Unregistering to vote 
• Closing local bank accounts
• Paying taxes as a non-resident
• Changing your driver’s license 
• Switching your forwarding address for mail
• Letting the IRS know you’ve moved 
• Updating all other financial accounts and institutions with your new address

The aim of these actions is to provide the court with proof that you actually have changed your domicile. Courts specifically look at: 

• Proof of Intent to abandon your old domicile
• Proof of intent to acquire a new domicile
• Proof that you are physically living in your new domicile 

And while states don’t require you to fill out a form declaring a new domicile, some offer it as an extra step that could be useful if you expect a reason to have to prove it in the future.

For example, here’s a declaration of domicile form from Michigan. 

As you can see, the form just involves answering a series of questions around the three criteria listed above.

Some jurisdictions also offer a certificate of domicile upon request as proof you reside in a territory. Call your local court and ask who is the best person to talk to about that if you’re curious.

What is an Affidavit of Domicile + How to Make One

Another common place to run into domicile is in the context of an affidavit of domicile.

An affidavit of domicile is just a legal document that states where someone was domiciled.

It’s created by the executor or personal representative and essentially says, “Yup. This is the deceased’s domicile and permanent residence. I swear on it.”

Executors sometimes have to make these when transferring sensitive financial assets between and out of institutions, such as bonds, stocks, and other “securities.”

Executors will also have to present their letters testamentary or letters administration, which are documents given by the court that prove the person has the right to manage someone’s estate.

Affidavits of Domicile usually include:

• Name of the deceased (a.k.a. decedent)
• The day they passed
• The state, county, and address of the domicile
• How long they lived in that address
• The name of the executor
• The address of the executor
• Maybe some information on the specific securities in question

Most banks and institutions also require this affidavit to be notarized, which is an official witnessing of the creation of the document. And keep in mind that affidavits are effectively sworn testimony, so do your absolute best to be truthful. 

Affidavit of Domicile Example

There is no universally accepted domicile form. As long as it’s notarized and includes the information the bank or interested party cares about, then you should be fine.

Some banks provide their own to make it easy, but if they don’t, you can just mimic someone else’s or get your lawyer to draft one up. You can also call the bank directly and see what they say.

As an example, here’s what Wells Fargo’s affidavit of domicile form looks like:

Affidavits of Domicile Forms for Specific Banks

And here are few links to major banks’ affidavit of domicile forms if you happen to bank with them:

• ‍Schwab Affidavit of Domicile
• ‍Wells Fargo Affidavit of Domicile
• ‍Regions Affidavit of Domicile
• ‍AST Affidavit of Domicile
  

How to get an Affidavit of Domicile Notarized

You just need to:

• Know what type of notarization you need (usually jurat, but ask the institution if unsure)
• Prepare the affidavit of domicile (ask the bank for what they need / if they have a form)
• Make sure the document is complete and accurate
• Bring acceptable identification (usually state ID)
• Ensure the name on your ID matches the name on your document
• Have all signers present for the notarization
• Be aware and willing to sign (not intoxicated etc.) 
• Know what you will be paying (max fees are set by law, here’s a breakdown)

They’ll give you the fancy stamp and then boom— you’ve got your notarized affidavit of domicile.

Domicile FAQs

What if you split your time between 2 states?

Let’s say you’ve lived in NYC your entire life, but you’ve always wanted to live out in the country, so three years ago you bought a house in Maine and have been splitting your time equally between the city and Maine. You vote and pay taxes in NYC but have a car and home in Maine. 

Because you never really intended to leave NYC, and you still vote, pay taxes, and do other important state functions in NYC, NYC will continue to be your domicile and residence, while Maine would simply be a residence. 

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Can I change someone’s domicile if they are deceased?

No. You cannot change someone’s domicile after they pass. 

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How can I make sure my will is interpreted according to my desired domicile?

Again, you have to prove that your domicile is legitimate through the actions you take up until you pass, but many wills start with a “statement of domicile” to clearly state where they consider their domicile to be. 

A simple idea with big consequences

While the concept of domicile is simple, it has widespread implications in probate, estate settlement, civil, and common law. 

If you’re an executor working through settling estate, it’s important to know where the deceased is domiciled and how that changes what you need to do. At the most basic level, the domicile will determine which probate court / clerks you need to deal with. 

Here are some other resources you may find useful during this process:

• ‍Probate Courts and Clerks by State
• ‍What is Probate? Beginner’s Guide + Timeline
• ‍The Quickest & Cheapest Way to Get Through Probate
• File Notice to Creditors Online

Best of luck!