Answers to Readers' Questions
I apologize for not having updated the blog earlier, but I hit an extremely busy stretch there for three weeks and so I had no real free time to update the site. In the meantime, I have received some emails from various persons that I thought I would share with you. If you have a question you would like to see answered here, send me an email by clicking here.
My father recently died in California. He was a resident there but also had some real estate and a bank account in South Texas. He did not have a Will. Do we have to do anything in a Texas court regarding probate?
Unfortunately not only will you have to have a determination as to heirship in California, you will also have to initiate an heirship determination proceeding in the Texas county where the real property is located. California law will govern all the real estate in that state, plus all the non-real estate assets in other states, but Texas law governs as to any real property located here. If he had a Will, you could have just filed an “exemplified copy” of the Will and the Order Admitting the Will to Probate in the deed records of Texas county where the property is located. An exemplified copy is similar to a certified copy, except that the clerk of the court has to verify and attest that the signature of the Judge on the probate order is true and correct.
Since there is no Will, an heirship determination must be held in Texas. The court will appoint an attorney ad litem to represent any minor or missing/unknown heirs. Testimony will have to be given as to the family history of your father by two disinterested witnesses who were familiar with the family history. If there is no one in Texas who can give that testimony, you will likely have to get the written deposition of two witnesses in California who can provide this testimony. Once the heirship is complete, title in the Texas property will vest in the proper heirs. Texas Probate Code Section 38 lists the persons who would receive this property on the death of someone without a Will.
I have family who is coming over from Louisiana following Hurricane Katrina, and they plan on staying in Texas permanently. I was wondering whether they needed to execute a new Will, or whether their current Wills were sufficient.
First of all, let me just say that we all wish all the best to your family and all others who are suffering the effects of this devastating storm. Normally I would say that it is not usually necessary for someone who is moving from another state to Texas to have to change their Wills, because Texas probate courts give full credit to any Will executed in another state. However, Louisiana uses the old Napoleonic Code when it comes to estates, and while certain changes have been made recently that eases some of the unusual provisions that are not found in a lot of other states, the way Wills are still required to be written (especially those written prior to some of the recent law revisions) seem to baffle many non-Louisiana probate attorneys. Thus, it might be best to suggest to them that they make the change whenever they get settled in and adjusted to their new life here in Texas. Best of luck to them.
My husband is in the hospital and wants a new Will. He has lost use of his arms, though, and can’t sign anything. Can I sign the Will for him?
Although you don’t say it specifically, I assume that your husband is mentally competent and has the ability to understand what is being put into his new Will. If that is the case, then he can direct that someone else sign for him, but it must be done in his presence and at his direction, and in the presence of the witnesses. Note that you cannot guide his hand in signing if he did not ask you to do that. Make sure that in the presence of the witnesses, he clearly states his desire for you to sign the Will for him. Section 59 of the Texas Probate Code provides the requirements for the execution of a Will.
My father recently died in California. He was a resident there but also had some real estate and a bank account in South Texas. He did not have a Will. Do we have to do anything in a Texas court regarding probate?
Unfortunately not only will you have to have a determination as to heirship in California, you will also have to initiate an heirship determination proceeding in the Texas county where the real property is located. California law will govern all the real estate in that state, plus all the non-real estate assets in other states, but Texas law governs as to any real property located here. If he had a Will, you could have just filed an “exemplified copy” of the Will and the Order Admitting the Will to Probate in the deed records of Texas county where the property is located. An exemplified copy is similar to a certified copy, except that the clerk of the court has to verify and attest that the signature of the Judge on the probate order is true and correct.
Since there is no Will, an heirship determination must be held in Texas. The court will appoint an attorney ad litem to represent any minor or missing/unknown heirs. Testimony will have to be given as to the family history of your father by two disinterested witnesses who were familiar with the family history. If there is no one in Texas who can give that testimony, you will likely have to get the written deposition of two witnesses in California who can provide this testimony. Once the heirship is complete, title in the Texas property will vest in the proper heirs. Texas Probate Code Section 38 lists the persons who would receive this property on the death of someone without a Will.
I have family who is coming over from Louisiana following Hurricane Katrina, and they plan on staying in Texas permanently. I was wondering whether they needed to execute a new Will, or whether their current Wills were sufficient.
First of all, let me just say that we all wish all the best to your family and all others who are suffering the effects of this devastating storm. Normally I would say that it is not usually necessary for someone who is moving from another state to Texas to have to change their Wills, because Texas probate courts give full credit to any Will executed in another state. However, Louisiana uses the old Napoleonic Code when it comes to estates, and while certain changes have been made recently that eases some of the unusual provisions that are not found in a lot of other states, the way Wills are still required to be written (especially those written prior to some of the recent law revisions) seem to baffle many non-Louisiana probate attorneys. Thus, it might be best to suggest to them that they make the change whenever they get settled in and adjusted to their new life here in Texas. Best of luck to them.
My husband is in the hospital and wants a new Will. He has lost use of his arms, though, and can’t sign anything. Can I sign the Will for him?
Although you don’t say it specifically, I assume that your husband is mentally competent and has the ability to understand what is being put into his new Will. If that is the case, then he can direct that someone else sign for him, but it must be done in his presence and at his direction, and in the presence of the witnesses. Note that you cannot guide his hand in signing if he did not ask you to do that. Make sure that in the presence of the witnesses, he clearly states his desire for you to sign the Will for him. Section 59 of the Texas Probate Code provides the requirements for the execution of a Will.
posted by Gary Howell at 10:47 AM
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