10 Mar 3 Ways to Probate a Will if Decedent Lives Outside Texas at Time of Death but Owns Property in Texas
It is not unusual for someone who lives in another state at the time of his or her death but owns real estate (including mineral interests) or other tangible personal property such as livestock, vehicles, collectables or business interests in Texas. The state of Texas has jurisdiction over property located in Texas. Transferring the interest in the Texas property (whether by will or intestacy) is generally accomplished by ancillary probate. For example, if the deceased lived in Colorado at the time of death and owned individual bank accounts that did not have a beneficiary designation and also had oil interests in Texas, then the will of the deceased would usually be probated in Colorado. Subsequently, ancillary probate in Texas is often needed to transfer property in accordance with the will. This is often simpler than original probate in Texas as discussed below.
If there is need to administer the decedent’s estate in Texas, an application for ancillary probate would be filed in the county where the property is located. The application would state that probate is requested in Texas and indicate that the will was probated in the state of the residence of the deceased. A copy of the foreign will (will from another state or country), which is attested by and with the original signature of the court clerk or other official who has custody of the will or who is in charge of the probate records, would need to be filed with the application. There must also be a certificate with the original signature of the judge (of the state and county of probate) stating the attestation was proper. If there is a court seal, it must also be affixed. The application must also include the names and addresses of all heirs at law as if there had been no will. Ancillary Letters Testamentary could be requested which would give authority to sell the Texas property by the person named as executor. Sometimes notice in a local newspaper is required to inform creditors. After the executor receives Ancillary Letters Testamentary, he or she can manage the assets, pay any debts or taxes owed in Texas and distribute the property according to the terms of the will (administration).
Proof of the qualification of the executor (not declared incompetent, not convicted of a felony or a crime of moral turpitude, resident agent appointed if needed, etc.) would be needed to receive the Ancillary Letters Testamentary (which are often given immediately after the hearing). Sometimes notice in a local newspaper is required to inform creditors.
The second option is used when there is no need for administration of the Texas property. If the deceased had a will probated in another state, then by simply filing an authenticated copy of the will along with the order admitting the will to probate (from the state of residence of the deceased) in the deed records in the counties where the decedent own real estate or mineral interests is sufficient.
The third way to probate a will if the non-resident of Texas owns property in Texas is sometimes called “non-domiciliary probate”. This is applicable if the will wasn’t probated in another state resulting in original probate in Texas.
Original probate of a foreign will (the will of a testator who dies domiciled outside Texas) requires the will to be valid under the laws of Texas. The will must not have been rejected from probate in the jurisdiction in which the testator died domiciled. If there is a will contest in the state where the testator was domiciled, the judge may delay probate in Texas. Otherwise, original probate would have the same requirements as required to probate a valid will in Texas which would include applying for probate, giving notice to all beneficiaries, issuance of citation, proof that the will is valid, and a hearing for the judge to approve the original will as a valid will and the signing of an oath by the executor or administrator that he or she will fulfill the obligations of the executor. Issuance of letters testamentary would then be given to the executor. A publication in a local newspaper giving notice to creditors would be needed which would subsequently be filed with the court. Then the executor would often file an inventory. If a copy of will is authenticated as mentioned above, it is sufficient for proof of the contents of the will. The original will is not required to be filed with the Texas court unless the judge orders it.
Thus, there are 3 options to probate the will of a testator who doesn’t have his or her domicile in Texas at the time of passing, but he or she owns property in Texas. The proper choice depends on the facts.
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