Ancillary probates are often needed when a person who resides in another state or country dies, but they own property in Texas. This “ancillary Texas probate” allows the heirs to obtain legal title and control over the Texas property.
There are at least three options for handling this situation, namely, recording the foreign probate records in Texas, commencing a formal ancillary probate proceeding in Texas, or commencing a regular probate in Texas.
The easiest way to deal with Texas property owned by an out-of-state decedent is to record the will and/or probate filings from the other state. For this to work, the will and/or probate filings should identify the heirs and dispose of the property that is located in Texas.
For example, if the decedent resided in California and started a probate in California, a certified copy of the California probate records may be filed with the County Clerk in the Texas county in which the property is situated. If the California will and/or probate filings identify the heirs and disposes of the Texas property, this may be sufficient to transfer legal title to the Texas property.
This process is frequently used when the Texas property only consists of real estate or mineral interests in Texas.
Recording the foreign will and/or probate documents in Texas may not be sufficient if someone needs power to deal with the Texas property.
For example, if the out-of-state decedent owned an operating business in Texas, someone may need the power to operate the business during the time the probate is in process. Or someone may need to be appointed to access bank accounts, to bring suit in Texas on behalf of the decedent, etc. Simply recording the foreign will and/or probate filings from the other state will not suffice if they do not expressly authorize the executor to take these actions.
This is where an ancillary probate can help. With the ancillary probate, an executor (if there is a foreign will) or administrator (if there is a foreign probate for an intestate estate) can obtain letters of ancillary administration in Texas. These letters authorize the holder to manage the Texas property.
There are situations where it does not make sense to do a probate outside of Texas, but yet, the out-of-state decedent owned property in Texas. In these cases, it may make sense to have the original and only probate done in Texas.
To accomplish this, one has to consider the Texas probate court’s jurisdiction. The Texas courts have in rem jurisdiction over Texas property. This in rem jurisdiction may be used to have a probate in Texas rather than in the foreign state or country.
One would have to convince the Texas court that no probate was needed or filed in the foreign state or country for the Texas probate court to accept jurisdiction over the matter.
This addresses probate proceedings in Texas for property located in Texas. There are also rules for Texas residents who die owning property located outside of Texas. We’ll consider the non-Texas resident ancillary probate rules next.
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