Ancillary Probate Attorneys in Austin, Texas
As ancillary probate attorneys in Austin, Texas, we assist out-of-state executors and administrators in probating out-of-state Wills in Texas, administering estate property located in Texas, and clearing title to Texas real estate.
An ancillary probate is an “extra” probate that occurs when a non-resident of Texas dies owning property located within the state of Texas.
Often, a decedent who was domiciled in another state (e.g., California) owned a house or other real property in Austin, Texas. The executor has been appointed in the home state but needs to sell property located in Texas.
Clearing Title To Real Estate Located In Texas
If the Will has already been probated in another state and you simply need to sell the Texas real property or put the beneficiaries in possession, there are a couple of options depending on the facts: (1) recordation of the Will in the county real property records or (2) an ancillary probate.
Option 1: Recording The Out-Of-State Will.
If the Will has already been admitted to probate in another state, the simplest and most straightforward method of clearing title to the Texas property is by recording authenticated copies of the Will and order admitting the Will to probate in the real property records of the county in which the property is located. This method is used when there is no need for estate administration in Texas and the only goal is to transfer ownership of the real property. The recorded Will and Order act as a deed conveyance of the property to the beneficiaries in the Will.
Can the out-of-state executor sell the real property in Texas? If the Will has been admitted to probate in another state and is properly recorded in the Texas county where the real property is located, the foreign executor is allowed to sell the Texas property without a court order, provided the Will gives the executor the power to sell estate property to begin with. Also, the executor will have to follow any specific directions in the Will concerning the sale of property.
Although this probate procedure is streamlined and quick in theory, in practice it sometimes presents issues. If the Will does not explicitly grant a power of sale, the executor will not be able to sell it; instead, the beneficiaries under the Will must all sign off on the sale. This can be logistically burdensome if they are located in multiple states. This also presents issues if one of the beneficiaries is incapacitated and cannot sign off. Further, if the Will lacks an adequate legal description of the Texas property, title company underwriters may have a problem with this and instead require an ancillary probate of the Will before a sale can occur.
Option 2: Ancillary Probate
Ancillary probate is more complicated than the procedure for recording the foreign Will and Order in the real property records, but it is more streamlined than an original probate. Ancillary probate is used in Texas when the Will has been admitted to probate in another state but recording the Will in Texas will not transfer title—such as when there are assets other than real property (e.g., stock, business interests, business entities, vehicles, money) or when an executor is needed to administer property in Texas.
Option 3: Original Probate
If the Will has not been probated in the decedent’s home state, can I still do an ancillary probate in Texas? No, an ancillary probate is not the proper procedure in this situation. But, the Will can still be probated in Texas. If the Will has not been admitted to probate in another state, the Will would be need to admitted as an original probate to be effective in Texas. An original probate is a ‘regular probate.’ In other words, the Will would be probate just the same as it would for a Texas resident.
Can An Ancillary Probate Be Done Without A Will?
No, an ancillary probate can only be used when the decedent died with a Will and the Will has been admitted to probate in some other jurisdiction outside of Texas. If the decedent died without a Will and owned property in Texas, a different probate procedure will be required.
I Have Been Appointed Executor/Administrator Of An Estate By A Probate Court Outside Of Texas. The Decedent Owned Property In Austin, Texas. Do I Have Authority To Administer The Decedent’s Estate In Texas?
Generally, a foreign administrator or executor (i.e., one appointed by the probate court of another state) does not have authority to act on behalf of a decedent’s Texas estate. Unless and until a foreign personal representative qualifies, he has no authority to act in this state, subject to some narrow exceptions, such as: collecting personal property in located in Texas that is voluntarily delivered to the representative; sell property (in certain circumstances); file suit in Texas to recover a debt of the estate; and file a wrongful death or survival action.
My Parents Moved To Austin, Texas From California Years Ago But Still Have California Wills. One Parent Recently Passed Away. Can I Probate This Will In Texas?
The answer is yes. Texas probate courts give ‘full faith and credit’ to Wills that were made in other states, provided the Will was validly made in accordance with the laws of that state. So, if someone lives in Texas dies with a Will made out-of-state, the Will can still probated in Texas. However, it could present legal problems during the probate depending on how it is drafted.
Contact Our Texas Ancillary Probate Attorney Today
Contact the Daves Law Firm today if you need assistance with an ancillary probate in Austin, Texas or the surrounding areas.