Dear Mr. Premack: My father passed away, leaving me and my sister a house in Texas. My father also had two more houses in Oklahoma. We have already probated his will in Oklahoma in court. My sister was named the Executor of his estate. My question is: Do we have to also probate in Texas to handle the house in Texas? – TLC
Your father must have lived and died in Oklahoma. I assume this because original jurisdiction for the probate of a Will lies in the state of a person’s domicile. Since the Oklahoma court accepted his Will for probate and appointed your sister as Executor, he must have been an Oklahoma resident.
Like many people, your father owned real estate in more than one state. His land in Texas cannot legally be controlled or administered by the Oklahoma court or Executor. Still, the state of Texas is compelled by the US Constitution to give full faith and credit to the valid acts of another state’s courts. Texas (and most states) resolve this potential conflict of laws by allowing the Oklahoma probated Will to be probated in Texas in a fast and simple manner.
From Texas’s viewpoint, the Oklahoma Will is called a “foreign Will.” Under section 95 of the Texas Probate Code, a foreign Will of a decedent who did not live in Texas at the time of his death “may be admitted to probate upon proof that it stands probated or established in any of the United States, its territories, the District of Columbia, or any foreign nation.” To accomplish the Texas probate of the foreign Will, you must obtain a certified, authenticated copy of the Oklahoma probate proceedings.
Your Texas lawyer would then file the certified, authenticated copy along with an application for probate with the Texas court which is located in the county where the Texas house is located. No court hearing is necessary as Texas law decrees that the Oklahoma Will is considered to be probated in Texas as soon as it has been filed of record with the proper Texas court. In this fashion, your sister could be named as Executor in Texas to handle any of your father’s unfinished business in Texas.
If, however, the only business your father had in Texas was ownership of the Texas house, Texas law provides a shortcut procedure. Instead of filing the certified, authenticated copy with the Texas court, those documents could be filed directly in the deed records of the county in which the house is located. If the Will clearly identifies you and your sister as the heirs to the house, it acts like a deed. The two of you can then move forward as full owners of the Texas house without any court proceedings.
Note that Texas is about to undergo a sweeping change in our probate laws. For many decades, all of our probate laws have been contained in the “Probate Code”. As of January 1, 2014, the probate code is being replace by the “Estates Code”. All of the laws have been reorganized and reworded. For instance, section 95 of the Probate Code becomes sections 501.001 through 501.008 of the Estates Code. The wording of the law on foreign Wills changes as well. The old Probate Code allowed foreign Wills from four places: a State, a US Territory, the District of Columbia or a foreign nation. The new Estates Code allows foreign wills from two places: States and foreign nations. It has no longer allows Wills that have been admitted to probate in a US Territory or in the District of Columbia.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, November 25, 2013