There are lots of people who own land in the state of Texas but who are residents of another location. For example, you may have a parent or loved one living in another state who owned property in Texas and who left that property to you.
When the deceased dies in this case, his assets are in different places. This can leave you wondering whether you need to go through the probate process twice: once in Texas where the land is located and another time in the area where the deceased had other assets. The answer is that you don’t have to go through the full probate process twice under these circumstances, but you do have some complicated legal issues to deal with that make it important for you to talk to a probate lawyer at Bertolino LLP .
Land Ownership, Residency and Probate
If the deceased lives in a state other than Texas, his or her will is usually going to be probated in the state where he was a resident. This makes sense since the bulk of the assets are in that other state.
The court in the other state, however, would not have the right to say what happened to land in Texas. Texas has the authority (called jurisdiction) to transfer or set rules related to land within its borders. Texas law, therefore, needs to apply to the process of transferring the assets you inherited in probate.
Fortunately, there is a streamlined system to make situations like this one easier. You can have the will probated in the place where the deceased lived, and there is a rule called the “full faith and credit clause” that says that when a court in one state in the United States makes a decision on an issue that it had authority over, the other states also need to respect and apply that court’s decision. To transfer your Texas land based on the out-of-state probate decision, however, you will need to go to court.
When you do, the will that was probated in another state is called a “foreign will.” The Texas Probate Code addresses “foreign wills” in section 95 and says that a will created by a deceased person who didn’t live in Texas at the time when he died would be admitted to probate provided that there was proof of the earlier probate action. A certified, authentic copy of the probate proceedings in the state where they occurred should be all you need.
Your probate lawyer in Texas will then file with the court the authenticated copy of the document that you have showing the will was probated. This will need to be filed with an application for probate in Texas. There is no need for a court hearing, because Texas law says that the out-of-state or foreign will can be considered probated in the state of Texas as soon as it is recorded or put on file in Texas court. You can thus move on with your life with the new property.
Streamlined procedures also exist in cases where the property you were left in Texas was a house. In this case, you can file the certified authentic copy of the probate documents with the deed records of the Texas county in which the home you inherited was located.
At Bertolino LLP, our attorneys are here to guide you through the probate process. If you need help, please contact our Austin, Houston or San Antonio office today.
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