Updated: Oct 12, 2021
This column first appeared in the San Antonio Express-News and other Hearst newspapers on June 2, 2020.
Dear Mr. Premack: Before this worldwide pandemic event started, my wife and I had planned to take a trip to celebrate our 40th anniversary. We had planned to take our adult children and their kids with us. The trip was to different countries in Europe. All the countries we were planning on visiting are in a stricter lockdown down than the USA. The trip has been cancelled for now. But (not that it had occurred to me before) what is the law about if we had died in one of those countries? Would our Texas legal documents apply or would the laws of the country where we had died apply? MMB
According to the laws of Texas, and of all the other states I have ever researched, the place a person dies is not the most important factor in the probate process. If you are resident of Texas and have a Texas Will, but you die while you are traveling in Europe (or anywhere else outside of Texas) the laws of Texas will still control the handling of your estate.
The most important factor is where you lived and maintained a permanent residence, not the location of your death. Of course, dying away from your home city raises practical considerations. What was the nature of the death: natural or criminal? The local authorities at the place of death will need to be satisfied that there is no mystery involved in the death before they will release the remains.
Transportation is another practical problem. The decedent’s family will likely desire the remains be returned home for a funeral, so there will be expense and delay arising from the travel. Some families may opt for a cremation at the place of death, and then more easily transport the cremains home for the funeral.
Obtaining proper signatures from the attending physician on the death certificate could be another trouble point. The death certificate will be issued by the authorities where the decedent was traveling. Will they be prompt and efficient? Will the language of the certificate cause confusion? The death certificate will be needed to claim life insurance benefits, to release financial accounts, and to start legal probate proceedings in the home jurisdiction so a problem in obtaining it or understanding it could be a large obstacle.
There is also a flip side to your question. What if a Texas resident, who dies at home in Texas, owns property in another state or a foreign country? There is a high likelihood that legal proceedings will be required in that other place. Some states’ laws will require that the local (Texas) probate be verified and then applied in those states. But foreign countries could require a wide variety of legal processes that would take much time and money to complete.
If you are going to buy property or make investments outside of Texas – in another state or a foreign land – talk to your local estate planning attorney about the utility of a living trust. You can allow the trust to own the property. The properly written and funded living trust will have a plan to avoid probate upon your death, saving your survivors a great deal of effort and money.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.