Legal: PROBATE OUT OF STATE WILLS
As a Texas attorney, very often I encounter people who need to probate a Will in Texas that was drafted in another state and under the other state’s laws.
This raises questions of whether a Will drafted in New York, Nevada, California, Florida or other states can be probated in Texas.
The answer to this question is yes. In the United States, we enjoy comity between states so that laws recognized in one state are recognized in other states, but several questions must be asked:
The first question is, “Would the Will be valid and enforceable in the state where it was drafted?”
The second question is, “Is it self-proven in the state where it was originated?”
If the answer to both of these questions is yes, then probate proceeding are only slightly more difficult than if it had been a Texas Will.
If the Will was not self-proven under the originating state laws, then it can probably still be recognized and probated in Texas, but with a few more “I”s dotted and “T”s crossed.
The big difference may be in the powers given to the executor.
Many states do not permit independent administration, and it is not made part of the Will. This becomes very important if all of the distributees in the Will do not always get along. Differences between independent administration and dependent administration can alter the complexity of the probate proceeding.
INDEPENDENT ADMINISTRATION – Your executor is allowed to follow instructions in your Will with minimal court intervention. Normally, the only thing required will be the filing of an inventory for approval by the Court.
DEPENDENT ADMINISTRATION – Is going to require court supervision of virtually everything required of your executor. It may require a bond and will almost certainly be much more expensive to settle the estate.
Many times probate is less expensive in Texas than it is in some other states, because Texas allows independent administration if granted in the Will.
If independent administration is not granted by the Will, it is still possible to achieve it if all the distributees in the Will can agree upon independent administration. If all distributees cannot agree that the estate should be probated as an independent administration, it does not invalidate the Will. It can still be probated as a dependent administration.
If you find yourself in the position of trying to probate a Will in Texas which was prepared in a sister state, the advice of an attorney who is experienced in Texas probate law can be of great help to guide you through the process.
Most attorneys of whom this attorney is aware, charge no fee or a modest reduced fee for an initial visit to answer your questions regarding probate of an out of state Will in Texas.
If you now reside in Texas and have a Will from another state, it is recommended that you consult an attorney of your choice experienced in probate law to advise you regarding keeping your existing Will or drafting a Texas Will. This becomes doubly important if your existing Will does not provide for an independent executor.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com.
