Several factors can complicate the estate planning process. Owning properties in multiple states is one example. Moving to a new state or splitting time between states is another. It’s essential to consider these factors when creating or updating an estate plan.
Generally, a state court only has authority over property within its borders. Therefore if an estate consists of multiple properties in multiple states, your heirs will likely have to open probate in each of those states. To complicate matters even further, separate jurisdictions often have different rules for the probate process.
Most property owned in Texas must go through Texas probate courts before passing to the beneficiaries. If you own assets in Texas but have a will in another jurisdiction, you may be wondering, Can my will from another state be used in Texas?
What Makes a Will Valid in Texas?
To understand if Texas courts will recognize wills from other states—which are known as foreign wills—it’s crucial to understand what makes a will valid in Texas.
Texas sets out several rules that a will has to follow to be valid:
- To write a will, you must be 18 years old, married, or a member of the armed forces. If you do not meet one of these requirements, the courts can’t recognize your will.
- Second, your will must be in writing and signed by you and two witnesses. “In writing” means that the will must exist in physical form, as a digital copy is insufficient in Texas. Typically, these requirements are met with a typed document that is physically signed with a pen. However, Texas does allow a holographic will as an exception to the witness requirement. A holographic will must be wholly handwritten in your handwriting and signed by hand. While legally valid, holographic wills can be difficult to prove and are generally not recommended.
- Finally, a person must have testamentary capacity and execute their will freely and voluntarily for it to be valid in Texas. To have testamentary capacity, an individual needs to understand the implications of writing a will, understand the extent of their property and relationships, and be capable of making reasonable judgments regarding the will. The will can be contested and deemed invalid if these factors are not met.
Does Texas Recognize Foreign Wills?
So, does Texas recognize wills from other states? The answer is yes.
However, many foreign wills lack the specific language required in Texas typically needed for the court to allow the estate to go through a simpler and faster version of probate called independent administration. Independent administration allows the executor to manage the estate with minimal court oversight, which significantly reduces both time and expense.
Since most states don’t allow for this process, wills drafted in those states typically don’t include the language needed for an estate to be administered outside of the court. As a result, The estate may be forced to go through a dependent administration instead.
Dependent administration involves court supervision at every step, including approving payments, distributing property, and selling assets. This process can substantially increase costs—sometimes by tens of thousands of dollars—and extend timelines, often lasting multiple years.
To avoid these costs and delays, is it crucial that your will includes the specific Texas provisions for Independent Administration. Even if a foreign will is legally valid, issues are likely to arise. Revise your will to align with Texas statutes and formalities consulting an experienced Texas estate planning attorney..
Why You Should Execute Your Will in Texas
Even though foreign wills can be valid in Texas, there are several advantages to executing your will in Texas.
To start, Texas permits you to opt for an independent administration of your will. Independent administration can allow your estate to bypass many of the most demanding aspects of probate court. However, to have your estate administered independently, Texas requires that the will clearly articulate this intention. Independent administration is not always an option in other states, so your will may need to be tweaked to take advantage of this process in Texas.
Further, having a will that complies with Texas law can save your beneficiaries and the courts time and money. Clearly stating your intentions and covering all your bases is extremely valuable in estate planning. Any ambiguities can open up the door for litigation. Litigation is costly. Many of those costs will be paid by your estate and reduce the benefits provided to your loved ones. Further, conflict over inheritances might create uncertainty and harm relationships between loved ones.
Finally, updating or re-executing your will in Texas will likely be inexpensive if you already have a will in another state because you won’t be starting from scratch. Having a foreign will to reference will save your estate attorney time, which will save you money.
Can You Avoid Having Your Estate Go Through Probate in Multiple States?
In most cases, yes. Setting up a revocable living trust is a great way to avoid probate courts and distribute property directly to beneficiaries. A living trust is a legal vehicle that helps consolidate ownership of your assets under one entity and distribute the assets according to your wishes. Creating a living trust can be a little more complicated on the front end. Still, it will save your beneficiaries significant time, uncertainty, and money on the back end. An experienced estate planning attorney can help you consolidate your assets into a living trust and avoid the probate process when passing on those assets to your beneficiaries.
Robbins Estate Law Can Help
If you own property in Texas and have a will in another state, Robbins Estate Law knows how to help. Our firm understands that estate planning is primarily about families, not money. Our attorneys work closely with every client to ensure their estate plan is carefully tailored to their needs. And we have flexible payment options that can fit within your budget. Schedule a consultation with Robbins Estate Law today so that we can help you plan for the future.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
Rate this Post
Loading...