Is the Will I made years ago when I lived in another state still good?
Can it be probated in Texas?
With our mobile society these days, it’s not uncommon for people to move between states frequently. Years ago we saw a mass exodus from the northeastern states down to Florida and Arizona…for the sunshine and the lack of Estate Taxes in the southern states (in general). Over the past year or so there has been a similar shift out of California to Texas as people flee the high taxes and the more business friendly atmosphere of Texas. People don’t just bring their furniture, dishes, and kids along…they bring their LLC holdings, their annuities, their life insurance policies, their pending lawsuits, and their Wills. Consequently, I get asked a lot “Is the Will I made in California (insert whatever state you just moved from) still good in Texas?”
The answer depends, of course, but in general yes.
States generally recognize the Wills made in other states, as long as they are made in conformity with the laws of that State, then Texas will recognize it and allow it to be probated here.
Often, a person will pass away in another state and their Will will be probated in that State, but the Deceased had property here in Texas. In that case, the Executor can use an Ancillary Probate proceeding here in Texas, allowing the Will to stay in the home State, but be recognized here in Texas and be appointed Executor here too. This will allow the Executor to transfer property located in Texas to the beneficiaries.
There are a few reasons to update your Will when you move to Texas, or get a new one entirely.
First, your Executor needs to be a resident of Texas in order to serve. If you made your Will in another state, the odds are that your named Executor is not a Texas resident. However, even if your named Executor is not a resident of Texas, you can still have them serve, your Probate attorney will just need to make sure your out of state Executor has a Resident Agent appointed (required by Texas law). This Resident Agent accepts all notices, claims, lawsuits, etc. on behalf of the out of state Executor and forwards them to the Executor. It’s a minor step, but it is always easier if the Executor lives nearby because they will need to attend the hearing and testify in order to be appointed the Executor.
Second, certain states recognize holographic Wills (handwritten wills) and some states don’t. Some states require certain notarizations and self-proving affidavits on their Wills and some don’t. So there are a few points, called “solemnities and formalities” that need to be observed for the Will to be valid in Texas. It’s therefore best to have your Will at least reviewed by a Texas Probate attorney to make sure it’s up to date and accurate.
Third, moving to a new state is a good reason to get your documents in order, double-check your distributions, your Executor (sometimes the person you have named in your Will to be your Executor dies before you…having a back-up Executor is crucial), and to update who really would really benefit from receiving the inheritance (the special needs daughter, the gambling son, the hardworking but raising a family niece).
These are all things that are best discussed with an experienced Estate Planning and Probate attorney.
But the good news is you’ve already made the biggest and best decision…you’ve moved to Texas.
Welcome to Texas!
Blaise Regan is a Partner at Regan & Frisbie, PLLC, a law firm focusing on Wills, Trusts, Probate, Contracts, Business Formations (LLC, Corporation, S-Corp Designation), Business Disputes, DTPA claims, and Consumer Litigation.
Regan & Frisbie, PLLC is located at 7160 Preston Road, Suite 100, Plano, Texas 75024.
Comments or questions, feel free to email him at Blaise@RFPlawfirm.com or call him at 469.200.4737.
*Nothing in this Article is to be considered as the rendering of legal advice for specific cases, or creating an attorney-client relationship, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and informational purposes only, and no warranty or representation is made as to the accuracy or completeness of the information contained herein.