Updated: Oct 12, 2021
This column first appeared in the San Antonio Express News and other Hearst Newspapers on February 14, 2020.
Dear Mr. Premack: My mother moved from Texas to Colorado to live with me. We moved her funds to Colorado, except for one CD that stayed at the Texas bank to keep a better interest rate. Recently she died. I am her only child. She named me executor in her Will, which I have probated in Colorado to get her accounts here. I informed the Texas bank of her death, sent a copy of the death certificate and my Colorado letters testamentary, but the bank said it will need a Texas court order to release the funds. How do I go about getting a Texas court order? S.A.
Your mother lived outside of Texas but held an asset in Texas. She had a Will, and it has been probated in the state where she lived at the time of her death (Colorado). The bank here wants a Texas court order to release the funds, and Texas Estates Code has a procedure to meet your need.
The legal procedure you need is called Ancillary Probate of a Foreign Will. In this context, “foreign” means from another nation or from another state, like Colorado. If her Will has been admitted to probate in Colorado – as it has – then it may be admitted to probate in Texas when she has property in Texas.
To obtain an Order from the Texas court, your Texas lawyer must file an Application with the local court, and must present an authenticated copy of the foreign proceedings. Broadly, that means obtaining a certified copy of the Colorado Order that admitted the Will to probate there, along with a certified copy of the Will and any other papers that were filed in the Colorado probate court. The Colorado Judge must also sign a certificate stating that the copy is proper and accurate.
When presented to the Texas court clerk, the Application, Will, and Colorado Order will become a public record in Texas. It is legally the equivalent of the Will being admitted to probate by a Texas judge, and the court clerk can issue a Texas certified copy of the Order which should satisfy the Texas bank. They should then release the funds to you. If that is not enough, the Texas lawyer can schedule a hearing before the Texas judge to ask that Texas letters testamentary be issued to you – which will certainly satisfy the bank.
Your mother did not have real estate in Texas, but when a non-Texan dies with real estate in Texas, there is an alternative legal procedure. When the foreign Will has already been admitted to probate in a foreign jurisdiction (like Colorado) then an authenticated copy can be obtained from the Colorado court. When the authenticated Order and Will are filed in the real property records maintained by the county clerk in the Texas county where the land is situated, those documents are treated as the legal equivalent of a new deed to the property. The Order and Will convey the land to the heir named in the Will as though there was a deed to them signed by the decedent.
Those legal processes accomplish the goal of transferring Texas assets to heirs named in a foreign Will when a non-Texas resident dies with assets in Texas. Despite the fact that they exist, there are easier pre-planning alternatives. For instance, your mother could have made sure to list you on that Texas bank CD as “joint with right of survivorship” or as “pay on death” beneficiary. Then the bank would have released the funds without any court order. If she had owned land in Texas, she could have established a Living Trust to become owner of that land. Upon her death, you could have become Trustee with full legal authority to deed the land into your name (or sell it) without a court order.
Seek the fastest, easiest way to handle your estate. Paying a qualified lawyer for pre-planning can be far less expensive and far faster than leaving the issue to the courts after you die.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.