If a decedent lived in a state other than Texas but also owned real estate in Texas, the family may use an ancillary Texas probate administration to pass title to the Texas real property. If the non-resident decedent left a Will, this is known as a foreign Will. If the foreign Will was probated in another state or country, the ancillary administration of that foreign Will is usually simpler than an original probate in Texas.
In this article, we will discuss ancillary probate administration in Texas. If you have a loved one who has died and owned real property in the Austin, Cedar Park, Round Rock or Pflugerville areas, contact probate lawyer Farren Sheehan to discuss ancillary administration in probate for transferring title to the property.
If there is no need for formal administration in Texas, a Will of the non-resident (foreign Will) that was probated in another state or country may be given effect in Texas by filing authenticated copies of the Will, along with the order admitting the Will to probate in the deed records of the counties in Texas where the decedent owned real property. If there is a need to administer a non-resident decedent’s estate in Texas, the executor or executrix named in the foreign Will may wish to apply for ancillary probate of the foreign Will and ancillary Letters Testamentary. However, if the foreign Will has not been admitted to probate in the non-resident’s state or country where he resided, an original probate proceeding may be necessary in Texas.
Ancillary Probate of a Foreign Will
If there is a need to administer a non-resident decedent’s estate in Texas, the executor or executrix named in the foreign Will can apply for ancillary probate of the foreign Will and ancillary Letters Testamentary.
The Texas Estates Code provides for a way that a written Will of a person who was not a Texas resident at the time of death may be admitted to probate in Texas. A foreign Will may be probated in Texas probate court if:
- The Will would affect any property in Texas; and
- Proof is presented that the Will has already been probated or established in another U.S. state or a foreign nation.
Application for Ancillary Probate
The family (or a probate attorney on their behalf) will need to file an application for ancillary probate of a foreign will. The application should state that probate in Texas is requested on the basis of the authenticated copy of the foreign proceedings in which the Will was admitted to probate or otherwise established.
An application for ancillary probate must include all information required for an application for ordinary probate of a Will in Texas, as well as state the name and address of each devisee and each person who would be entitled to a portion of the estate as an heir in the absence of a Will.
When filing the application, a copy of the foreign will, as well as the judgment, order, or decree by which the Will was admitted to probate or otherwise established, must be included. The copy must:
- Be 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 probate records;
- Include a certificate with the original signature of the judge or presiding magistrate of the court stating that the attestation is in proper form; and
- Have the court seal affixed, if a court seal exists.
Effect of Filing and Recording a Foreign Will
Once a foreign Will is filed and recorded, it is considered to be admitted to probate and has the same effect for all purposes as if the original Will had been admitted to probate by order of a Texas court.
Ancillary Letters Testamentary
On application, an executor named in a foreign Will admitted to ancillary probate in Texas may receive ancillary Letters Testamentary. The executor must be qualified to serve as executor in the jurisdiction in which the Will was previously admitted to probate or otherwise established, and may not be not disqualified from serving in that capacity in Texas. After the executor makes this proof, the court will enter an order directing that ancillary Letters Testamentary be issued to the executor. The court will revoke any letters of administration previously issued to any other person on application of the executor after personal service of citation on the person to whom the letters were issued.
How a Probate Attorney Can Help
Someone considering an ancillary probate should consult a probate lawyer to review the estate to determine and advise as to whether an ancillary probate is the right course of action. This attorney can prepare necessary legal documents, ensure that they are executed properly, and file them where needed.
Contact Sheehan Law, PLLC
Attorney Farren Sheehan in Pflugerville is experienced in all probate and non-probate matters, including alternatives to probate and ancillary probate. Call Sheehan Law, PLLC at (512) 251-4553 with any questions you have regarding ancillary probate issues in Travis County or the Austin area, and we would be happy to set up a consultation to discuss. You can also fill out an our convenient online contact form with your questions and we will be in contact.