Texas Probate Law Website
In Texas, ancillary probate is necessary in a situation where the decedent owned assets in a state other than Texas. For example, if the decedent owned a vacation home in Florida then a probate process will also have to be completed in Florida. Multiple probate proceedings may seem expensive and time consuming, but in Texas, admitting a will for probate that has already been probated in another state is not complicated. As long as the decedent left property in Texas, it is very likely that Texas probate courts will admit the decedent’s will even if it went through probate in another state.
How Ancillary Probate Works
A will that was already probated in another state is called a foreign will in Texas. Once the probate process for a will is already initiated in the state the decedent lived in, an authenticated copy of that will has to be filed together with the order that admitted that will to probate. The decedent’s family or probate attorney files these documents in the deed records in the Texas county or counties where the decedent owned real property. An executor named in the foreign will may apply for ancillary probate of the foreign will and ancillary letters testamentary if the property in Texas needs to be administered.
Are All Assets Subject To Ancillary Probate
In Texas, both personal property and real property are subject to ancillary probate. However, intangible personal property is probated in the state where the decedent lived. These include intangible property such as bank accounts, stocks in closely held companies, brokerage accounts, and more. The reason why they are not subject to ancillary probate is because they are considered to be sited in the state that the decedent lived in. In other words, even if the decedent held stock certificates in 60 different companies in 26 different states, they will still be considered to be sited in the state the decedent lived in.
Why Ancillary Probate Is Necessary
Ancillary probate is necessary because a state only has exclusive jurisdiction over real property and personal property in that state. What this means is that Texas only has power over real property and personal property in Texas and can only probate property situated in Texas. That is why if a person has property situated in a different state from Texas, that state will probate the decedent’s property in that state. For example, since Texas courts have jurisdiction to adjudicate titles to Texas lands, it means that probate for land located in Texas cannot be conducted by courts in another state as far as inheritance of that land is concerned.
Can You Avoid Ancillary Probate?
You can avoid probate by creating a trust and placing the assets into that trust. You can also form a limited liability company and place those assets into that company. But an easier way to avoid ancillary probate is to simply transfer all out-of state assets before death. You can do this by owning the assets as joint tenants with the right of survivorship or by establishing a revocable living trust.