When a person passes away, their property is placed into an estate, and their will determines who gets a share of it. Before the beneficiaries can collect their inheritance, the will must go through probate. Probate ensures that a person’s will is valid and that all bills are paid before inheritances are distributed. The probate court may only handle estates of property located within the state. When a will was executed by a testator who was not domiciled in Texas at the time of their death, it becomes a foreign will. In Texas, you can probate foreign wills in the Texas county where the property is situated.
If you have any questions about foreign wills, don’t hesitate to contact Robbins Estate Law today.
What Is a foreign will?
A foreign will is a will created by a person who was not domiciled in Texas at the time of their death. A domicile is a fixed place of residence or a permanent home. When a resident Texan dies, their will is probated in the Texas county where they lived at death, regardless of where they executed the will. If a person died in Texas but did not have a Texas domicile, their will may go to probate in the Texas county where they died or owned property. When a person dies domiciled outside the state, the family should file for probate in the county where the property is located or next of kin resided.
When Can You Probate a Foreign Will in Texas?
The Texas Estates Code authorizes the court to probate foreign wills that will affect property within the state. The process depends on whether you need the Texas probate court to validate the will. If your loved one’s estate is made up of property primarily located in Texas, you may file for original probate, which includes validation. If the estate is primarily located in another state, you may file in that state first. After the court validates the will, you can file for ancillary probate to deal with the Texas property.
What Is Original Probate?
Original probate of a foreign will includes legal validation and administration of a will that affects Texas property. A Texas court cannot probate a will that was rejected in the jurisdiction where the testator was domiciled when they died. However, a Texas court can conduct original probate of a foreign will if the will was rejected solely for a reason that is not a ground for rejection in Texas. To receive validation by the Texas probate court, the will must:
- Meet Texas’s requirements for a written will, which means it must be signed by the person making the will and two witnesses;
- Meet the requirements for a valid will in the state where the will was executed; and
- Meet the requirements for a valid will in the state where the person was domiciled at the time of their death.
Once the court validates the will, the personal representative, also known as the “executor” of the estate, can take control of the Texas property.
What Is Ancillary Probate?
When you probate your loved one’s principal estate in another state, you still need the Texas court to probate Texas property. The process of submitting a will to the Texas probate court to handle the Texas property is called ancillary probate. If the will was probated by the court in the person’s place of domicile at the time of death, you must submit an authenticated copy of the proceedings that validated the will. If the foreign will was probated outside of their place of domicile, you must include the following:
- All information required for a domestic will probate application; and
- The name and address of each devisee and each person who would be entitled to a share of the estate as an heir in the absence of a will.
In either case, you must include a copy of the foreign will and the judgment, order, or decree by admitting the will to probate in the initial jurisdiction. Once filed, the court will admit the copy of the foreign will to probate with the same effect as the original will. If there are objections to probate, the contestants must follow the procedures laid out in the Texas Estate Code, Chapter 504.
How to Avoid Probating a Foreign Will
As you can see, the answer to the question “can you probate a foreign will in Texas” is complicated. With effective estate planning, you can help your family avoid probating a foreign will. By placing your out-of-state property in trust, you can leave your property to your loved ones without the need for probate. At your death, the named trustee will distribute the trust property to your beneficiaries according to the trust document. Trusts have many benefits and drawbacks that your attorney can explain so that you can better evaluate whether a trust is right for you.
How Can a Lawyer Help with Probate of a Foreign Will?
Most families find probate stressful. Dealing with challenges from all the parties who would stand to gain from a person’s estate can be overwhelming. Even the most minor dispute may require a hearing. Robbins Estate Law, PLLC, can guide you through the process and protect your rights and interests. You can trust our team-based strategy to achieve your probate goals and preserve your family’s legacy. Contact our probate lawyers in Texas today by phone or online to schedule an initial consultation.