YEAH, YOU GOTTA PROBATE THE WILL – Yet Again!
I recently received three inquiries:
- My father passed away in Kentucky. He left his properties, including his mineral estate rights in Texas to a trustee in trust for the benefit of his children. The will was probated in Kentucky. While not too familiar with the probated process in Kentucky, the original will be on file in Kentucky and a court of appropriate jurisdiction in Kentucky has issued an order determining the will to be valid and enforceable.
So, now how do I get my Texas properties transferred.
You are in luck.
a. Step 1. Since the will has been probated in a foreign jurisdiction (a jurisdiction other than Texas, such as Kentucky), an ancillary probate proceeding is called for. TEX. EST. CODE §501.0021 et seq. The process is straightforward and simple – in fact, it is the “ministerial duty of the clerk of court to record the will in the judge’s probate docket” (although virtually all probate judge’s routinely sign an order admitting the foreign will to probate). No in-person hearing is required.
b. Step 2. Record an “authenticated copy” of the Kentucky will and the Kentucky order admitting the will to probate in each county where the decedent owned mineral estate rights to establish a clear chain of title. TEX EST CODE §503.001.
Tip: There is authority for the proposition that Step 2, alone is adequate to transfer title. I also find that virtually all oil companies accept out of state wills (properly probated of course) if they have been properly recorded in the official public records of the county where the mineral estate interests are located.
Armed with appropriate copies of the ancillary probate proceeding and evidence of proper recordation in the official public records of the county(ies) where the mineral estate properties are located, it then becomes a matter of contacting the various oil companies, having them update their records (including the trustee executing new division orders) – and getting the properties “in pay” to the now rightful owners.
- My Uncle died in 2015 in Nebraska, where I live. He had a will that left all his mineral rights in Texas to me. While having no children or a surviving spouse, he had numerous other nephews and nieces. The will was never probated in Nebraska. What should I do?
a. Step 1. Consult with a local Nebraska lawyer to see if the will can still be probated in Nebraska. Most states limit the time for the probate of an original will (for instance, in Texas it is 4-years from the date of death of the testator). If you can still probate the will in Nebraska, do so and then file an ancillary probate proceeding in Texas. In Texas, there is no time limitation for initiating an ancillary probate proceeding.
b. Step 2. If you are barred from offering the will for probate in Nebraska, consult with a Texas probate lawyer. In Texas, generally, original probate proceedings (which this would be) must be initiated within 4-years of the date of death of the testator, unless it can be shown that the applicant for the probate was not “in default.” EST CODE §256.003. While what is “not being in default” is beyond this blog, it is important to note that the proponent of the will faces an “uphill task.”
If you do not at least try to “probate the will” in Texas, then your uncle’s mineral estate rights will devolve according to the laws of Texas intestate succession – essentially to his siblings or their children.
Tip. So, in this scenario, the Nebraska resident appears to have made a costly error by ignoring the well-known legal maxim – “you snooze; you lose. “But at the very least consult with a Texas probate lawyer before “giving up.”
- My Uncle died last month in Nebraska, where I live. He had a will that left all his mineral rights in Texas to me. While having no children or a surviving spouse, he had numerous other nephews and nieces. What should I do?
a. You are timely – you are smart.
b. You have the option of opening the probate proceeding in Nebraska (where he resided) or in Texas in a county where he owned real property. If you choose Nebraska, at some point you will have to initiate an ancillary probate proceeding in Texas.
Ultimately, the decision will come down to legal fees (a Nebraska probate with an ancillary Texas probate versus a Texas original probate proceedings). As an aside, Texas probate proceedings are not terribly expensive, although an in-person hearing is required to the probate a will in an original proceeding (and some rural locations in Texas are remote). Also, you should determine that there are no properties in Nebraska requiring a probate proceeding to secure their passage to new owners. While we are aware that many individuals attempt to have the probate of their estates avoided by transferring assets into a trust, if ALL of the property is not properly transferred (as is often the case), a probate proceeding is still required.
Tip. The loss of a family member or friend is tough. Unreasonable delays in dealing with estate assets almost always exacerbates the problem. Part of grieving process is dealing with the distribution of assets – and remember, “you snooze; you lose.” Here, that is not the case.
More often or not, the following questions come up in the scope of an interview with a prospective client:
WHAT IS THE DIFFERENCE BETWEEN A PROBATED WILL VERSUS AN ALLEGED WILL?
There are two types of wills: alleged wills and probated wills. An alleged will is an unproven will, namely
- No proof that the signature of the maker of the will is authentic
- No proof that the maker of the will was mentally capable of making a will (e.g., legally competent)
- No proof that the maker of the will was not under duress (e.g., inappropriately influenced into preparing the will).
A will that has been probated is accompanied by an order by an independent third party (namely a probate judge) that the will is a. signed by the maker of the will (no forgery), b. that the maker of the will was legally competent to execute the will (think sane, not senile), c. the maker of the will was not under undue distress (think, did not have a gun to his head); and d. that the will is valid and operative to transfer assets in accordance with its terms.
No competent third party will ever rely upon an alleged will. It just may turn out not only to be alleged, but inoperable, fraudulent, etc.
CAN I AVOID HIRING A PROBATE LAWYER BY FILING THE WILL AS A MUNIMENT OF TITLE?
Where would you file this will? And would the county clerk determine that it was the maker’s signature, that the maker had been sane at the time of making the will, and that the maker had been free of an undue influence when the will was made? Ever met a county clerk? Do you really want them making decisions like that? That is way above their “pay grade.”
By the way, you do not “file a will as a muniment of title.” You can file an application with a court sitting in probate to “probate a will as a muniment of title” in some instances. Still, a judge, not the “wino” in front of the courthouse, will decide that the will is valid. A probate of a will as a muniment of title may be a little less expensive than the usual probate of a will, but not by a whole lot.
YEAH, YOU GOTTA PROBATE THE WILL
Yeah, you must go to a court and probate the will; a judge must rule that it is a valid will. No other way. And, if you do not do so within four (4) years of the death of the will’s maker, the property may devolve according to the laws of intestate succession – possibly different from the terms of the will.
IT’S ALL ABOUT MONEY
This is all about the transfer of assets. ASSETS = MONEY. People care about money; people fight over money. Gasoline stations exist so that we will have gasoline to power our cars; probate courts exist so that property owned by someone who is deceased can be transferred in an orderly fashion. Dead people cannot sign deeds; there must be an orderly system in place. There is – it is called “probate.”
People preparing wills should always make sure that their will attorney has experience actually probating a will. You would be surprised how many incomplete wills we review.
Second, if you have significant real estate holdings, make sure you consult an attorney familiar with real estate law, not just will drafting. There are alternative vehicles to transfer real estate, such as “death deeds” (effective at death) and conveyances with a retained life estate (mineral rights retained by the grantor until his or her death).
Practice Tip: If you reside out of state and have a local attorney draft a will for you there, make sure that the attorney is aware of your real estate holdings in Texas. He should be able to assist you in planning for a relatively painless Texas real estate transfer by use of trusts/death deeds/limited liability corporations or by referring you to a Texas attorney for supplemental advice.
We not only draft wills and assist with estate planning, we also “probate wills.” Also, we have a substantial real estate law background, particularly in oil and gas law.
So – come and see us!
by Jack M. Wilhelm
Edward Wilhelm and Jack Wilhelm provide tremendously high value legal assistance to a large number of very desirable clients.
THE WILHELM LAW FIRM, 5524 Bee Caves Road, Suite B5, Austin, TX 78746; (512) 236 8400 (phone); (512) 236 8404 (fax); www.wilhelmlaw.net
DISCLAIMER: The information on this site is not intended to and does not offer legal advice, legal recommendations, or legal representation on any matter. You need to consult an attorney in person for legal advice regarding your individual situation.