Complete Original Probate In Decedent's Home Jurisdiction
When someone dies in another state that person's will often needs to be probated in their home state to transfer personal property and real property within that state. The person who died is known as the "decedent". If that individual owned real property in Texas a simplified ancillary probate filing will probably be necessary in Texas. Luckily, a simplified Texas ancillary probate filing can often be handled faster and with less expense than an original probate proceeding (or even a full ancillary probate proceeding that is usually not necessary). Below are the normal steps to initiate the transfer of Texas property when an individual from another state owned Texas real property and left it to a beneficiary or beneficiaries in their will. The simplified ancillary probate filing can only be accomplished after the decedent's will has been probated in their home jurisdiction.
Identify All Real Property
All real property should be identified with some specificity. A legal description of each property in Texas is preferable, but at a minimum each Texas County with real property should be identified. Don't forget to include any mineral interests.
Contact Texas Probate Attorney and Obtain Exemplified Copies Of Original Probate Proceeding
A Texas Attorney can file exemplified copies of the original probate proceeding in each county the decedent owned real property in to complete a simplified ancillary probate transfer. An exemplified copy of the original probate transcript is a special type of official copy authenticated by the proper court Clerk and Judge. The attorney who handled the original probate is usually the best person to obtain exemplified copies from the court where the original probate was handled and discuss any relevant issues with a Texas probate attorney.
Contact Various Entities
Although a proper simplified ancillary probate filing should put most individuals and entities on notice as to the transfer of property, oil and gas purchasers/producers, taxing entities, and other interested parties should generally be contacted and informed of the transfer and given contact information for the new owner(s). If dealing with oil companies is necessary the names, addresses, and tax ID number or social security numbers for the new owners may be requested and the new owners may be asked to sign division orders. Oil companies will sometimes accept a letter in lieu of transfer order after a simplified ancillary probate filing has occurred.
Will Ancillary Letters Testamentary Be Necessary?
Although it is sometimes advisable to seek ancillary letters testamentary so that an ancillary executor may deal with certain issues, where real property simply needs to be transferred to the beneficiary or beneficiaries in the will and the original probate made it clear who those beneficiaries are, a simplified ancillary probate filing to transfer the property directly to the beneficiary or beneficiary may be the most efficient course of action. A probate attorney should normally make the determination as to whether a simplified ancillary probate filing is appropriate.
What If The Decedent Died Without a Will?
Unfortunately, there is no procedure in Texas for an ancillary administration if the decedent died intestate (without a will) even if some form of probate or intestate administration has been accomplished in the decedents home state. If there is real property in Texas the administration in the decedent's home state may be used as evidence but an attorney will have to otherwise look to transfer property using the same options that would have been available if no foreign probate had occurred. Under these facts it is advisable to seek a Texas probate attorney located in or near the county where the most substantial Texas property is located. There is a link to a map of Texas counties at the bottom of this guide.
What If There Is No Need For Probate In Home Jurisdiction?
Occasionally an attorney in a decedent's home state determines that probating a decedent's will is not necessary in the decedent's home state but may be necessary in Texas. Although an ancillary probate will not be possible without probating the will in another jurisdiction, Texas may allow the "Foreign Will" to be probated in Texas in an original probate proceeding. Under these facts it would be a good idea to find a probate attorney who practices in the county where the most substantial Texas property is located. There is a link to a map of Texas counties at the bottom of this guide.
What If All Texas Property Was Owned By A Trust?
Individuals often incorporate certain kinds of trust planning into their estate plans to avoid probate. If all real property was transferred into a trust before the Decedent died and remained in the Trust or passed pursuant to the terms of the trust a probate of any kind might not be necessary in Texas. However, a probate attorney in the decedent's home state should still be consulted.