How is Probate Handled if the Decedent Lived in Texas But Had Assets in Another State?

When a person passes away, their executor will begin the probate process in the Texas county where they had their primary residence. This is sometimes called a domiciliary probate. In the case of a decedent who only owned property within the state of Texas, this will be the sole probate process that needs to be completed.

However, a Texas probate court cannot approve the distribution of many types of out-of-state assets. These assets are under the jurisdiction of the state where they are located. The executor will typically need to initiate a secondary probate, known as an ancillary probate, in the relevant state(s) to transfer these assets to the appropriate heirs. Correctly dealing with out-of-state assets during probate can be highly confusing and may lead to extra expenses and challenges for families. A knowledgeable Texas probate attorney can explain what you need to know about ancillary probate and help you navigate the process efficiently.

What Varieties of Out-of-State Assets Do Not Require Special Procedures?

Only certain out-of-state assets will be subject to ancillary probate. Intangible personal property is one type of asset that generally does not need to be probated in another state. This category includes:

  • Bank accounts
  • Company stock
  • Investment and brokerage accounts
  • Retirement accounts

Intangible property is considered located wherever the decedent resided, regardless of where the associated bank or company is based. Therefore, intangible property can be included in the Texas probate proceedings. Certain types of intangible property may even be entirely exempt from probate if they are jointly owned or have a built-in mechanism for passing the asset to a new owner, such as a transfer-on-death (TOD) bank account.

When is Ancillary Probate Necessary?

Ancillary probate is generally necessary when a portion of the decedent’s assets are physically located in another state. Due to the asset’s location, the other state has the sole jurisdiction to direct their transfer based on the laws of that state. Out-of-state assets that may require ancillary probate include:

  • Real estate, including farms, land, cabins, vacation homes, and businesses
  • Mineral rights
  • Oil and gas holdings
  • Livestock
  • Personal property

How Does an Ancillary Probate Work?

The actual steps required to complete the ancillary probate process will depend upon the laws of the state where the assets reside. Some states may have simplified or fast-track options for executors who have already completed the domiciliary probate in Texas. In contrast, others will require at least one or more court dates to accomplish the property transfer. Undertaking an ancillary probate can often feel overwhelming as you try to navigate the legal systems of two states. Unfortunately, any errors can be costly and may further extend the probate process. Enlisting the assistance of a skilled probate attorney can be crucial to ensuring the correct completion of all necessary actions in a timely fashion.

Are Wills Written in Another State Valid in Texas?

Some people own out-of-state assets because they previously lived in a different location. A common concern after moving is whether an already drafted will can be used in a new state. The good news is that a will written by an individual before they moved to Texas is nearly always acceptable for probate purposes, as long as it meets the basic requirements for validity in the state where it was created.

That being said, it is highly recommended that you update your will after you’ve settled in Texas to ensure the easiest and smoothest probate process for your loved ones. Texas has unique probate laws meant to streamline probate for the executor. Tailoring your will to take advantage of the following features of the law can result in less hassle and expense for your family after your passing:

  • Independent administration: If a testator specifies in their will that they want their estate subject to independent administration, the executor will likely only need to attend one hearing in front of the probate court where they present the will to the judge. Following this hearing, the executor should be able to distribute the estate’s assets per the will’s terms without further court dates.
  • Self-proving affidavit: Texas Estates Code Sec. 251.104 outlines the requirements for including a self-proving affidavit in a will. If this affidavit is appropriately filled out, no witnesses are required to appear during the probate process to attest to the validity of your will, making the process simpler for your loved ones.

How Can Proper Estate Planning Help Your Beneficiaries Avoid Ancillary Probate?

Many people own property in multiple states. From family cabins to lucrative mineral and gas rights, these are valuable assets you can leave as a legacy to your loved ones. With careful forethought and the assistance of an experienced estate planning lawyer, you can help your family avoid ancillary probate on these assets. Intentional planning now can significantly reduce future expenses and stress for your family.

A solid working knowledge of both Texas and other states’ probate laws is necessary to institute these plans effectively and avoid any tax issues or unintended legal consequences. Your lawyer can evaluate your estate and goals to discover and implement the best strategies for handling your out-of-state assets. Trusts, joint tenancy, and transfer-on-death deeds are just some of the tactics that may be utilized to negate the need for ancillary probate.

How Can Our Law Firm Help You?

Probating out-of-state assets can be complicated. By working with a well-versed probate lawyer from The Hatchett Law Firm, you can get the personalized assistance you need to tackle this task confidently. We can also help you with estate planning for your out-of-state property and other assets to make the transition process faster and easier for your loved ones. To learn more about our services, contact our office today at 281-771-0560 to schedule a free case evaluation.