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Estates and Guardianship Code
Proposed Chapters
81C173(3) MTB

81C173(3) MTB

 

CHAPTER 501.  ANCILLARY PROBATE OF FOREIGN WILL

Sec. 501.001.  AUTHORITY FOR ANCILLARY PROBATE OF

                 FOREIGN WILL .............................. 1

Sec. 501.002.  APPLICATION FOR ANCILLARY PROBATE OF

                 FOREIGN WILL .............................. 3

Sec. 501.003.  CITATION AND NOTICE ......................... 5

Sec. 501.004.  RECORDING BY CLERK .......................... 5

Sec. 501.005.  EFFECT OF FILING AND RECORDING FOREIGN

                 WILL ...................................... 6

Sec. 501.006.  ANCILLARY LETTERS TESTAMENTARY .............. 7

Sec. 501.007.  EFFECT ON PROPERTY .......................... 8

Sec. 501.008.  SETTING ASIDE OF CERTAIN FOREIGN WILLS ...... 9

CHAPTER 501.  ANCILLARY PROBATE OF FOREIGN WILL

Revised Law

Sec. 501.001.  AUTHORITY FOR ANCILLARY PROBATE OF FOREIGN WILL.  The written will of a testator who was not domiciled in this state at the time of the testator's death may be admitted to probate in this state if:

(1)  the will would affect any property in this state; and

(2)  proof is presented that the will stands probated or otherwise established in any state of the United States or a foreign nation.  (Tex. Prob. Code, Sec. 95(a).)

Source Law

Sec. 95.  (a)  Foreign Will May Be Probated.  The written will of a testator who was not domiciled in Texas at the time of his death which would affect any real or personal property in this State, may be admitted to probate upon proof that it stands probated or established in any of the United States, its territories, the District of Columbia, or any foreign nation.

Revisor's Note

(1)  Section 95(a), Texas Probate Code, refers to "real or personal property."  Throughout this chapter, the revised law omits references to "real or personal" as unnecessary because Section 311.005(4), Government Code (Code Construction Act), applicable to the revised law, defines "property" to mean real and personal property.

(2)  Section 95(a), Texas Probate Code, provides that a foreign will "may be admitted to probate" on proof that the will stands probated or "established" in another jurisdiction.  Throughout this chapter, the revised law adds "in this state" to "may be admitted to probate" and similar phrases for clarity to distinguish the ancillary probate authorized by this chapter from the original probate authorized in another jurisdiction.  Also, throughout this chapter, the revised law substitutes "otherwise established" for "established" in this context for accuracy and consistency of terminology.

(3)  Section 95(a), Texas Probate Code, refers to a will that has been probated or established in "any of the United States, its territories, [or] the District of Columbia."  The revised law substitutes references to "any state of the United States" for the quoted phrase because Section 311.005(7), Government Code (Code Construction Act), applicable to the revised law, provides that "'[s]tate,' when referring to a part of the United States, includes any state, district, commonwealth, territory, and insular possession of the United States and any area subject to the legislative authority of the United States of America."

Revised Law

Sec. 501.002.  APPLICATION FOR ANCILLARY PROBATE OF FOREIGN WILL.  (a)  An application for ancillary probate in this state of a foreign will admitted to probate or otherwise established in the jurisdiction in which the testator was domiciled at the time of the testator's death is required to indicate only that probate in this state is requested on the basis of the authenticated copy of the foreign proceedings in which the will was admitted to probate or otherwise established.

(b)  An application for ancillary probate in this state of a foreign will that has been admitted to probate or otherwise established in a jurisdiction other than the jurisdiction in which the testator was domiciled at the time of the testator's death must:

(1)  include all information required for an application for probate of a domestic will; and

(2)  state the name and address of:

(A)  each devisee; and

(B)  each person who would be entitled to a portion of the estate as an heir in the absence of a will.

(c)  An application described by Subsection (a) or (b) must include for filing a copy of the foreign will and the judgment, order, or decree by which the will was admitted to probate or otherwise established.  The copy must:

(1)  be attested by and with the original signature of the court clerk or other official who has custody of the will or who is in charge of probate records;

(2)  include a certificate with the original signature of the judge or presiding magistrate of the court stating that the attestation is in proper form; and

(3)  have the court seal affixed, if a court seal exists.  (Tex. Prob. Code, Secs. 95(b)(1) (part), (2) (part), (c) (part).)

Source Law

(b)  Application and Citation.  (1)  Will probated in domiciliary jurisdiction.  If a foreign will has been admitted to probate or established in the jurisdiction in which the testator was domiciled at the time of his death, the application need state only that probate is requested on the basis of the authenticated copy of the foreign proceedings in which the will was probated or established… .

(2)  Will probated in non-domiciliary jurisdiction.  If a foreign will has been admitted to probate or established in any jurisdiction other than the domicile of the testator at the time of his death, the application for its probate shall contain all of the information required in an application for the probate of a domestic will, and shall also set out the name and address of each devisee and each person who will be entitled to a portion of the estate as an heir in the absence of a will… .

(c)  Copy of Will and Proceedings To Be Filed.  A copy of the will and of the judgment, order, or decree by which it was admitted to probate or otherwise established, attested by and with the original signature of the clerk of the court or of such other official as has custody of such will or is in charge of probate records, with the seal of the court affixed, if there is a seal, together with a certificate containing the original signature of the judge or presiding magistrate of such court that the said attestation is in due form, shall be filed with the application… .

Revisor's Note

(1)  Section 95(b)(1), Texas Probate Code, refers to the authenticated copy of the foreign proceedings in which a foreign will "was probated" or established. The revised law throughout this chapter substitutes "was admitted to probate," or a similar phrase, for "was probated," "has been probated," or "had been probated" because those phrases are synonymous and "was admitted to probate" is more consistent with the terminology used in this chapter.

(2)  Section 95(c), Texas Probate Code, refers to a certificate signed by a judge or magistrate that an attestation required under that section is "in due form."  The revised law substitutes "in proper form" for "in due form" because the phrases are synonymous in that context and the former phrase is more consistent with modern usage.

Revised Law

Sec. 501.003.  CITATION AND NOTICE.  (a)  Citation or notice is not required for an application described by Section 501.002(a).

(b)  For an application described by Section 501.002(b), a citation shall be issued and served by registered or certified mail on each devisee and heir identified in the application.  (Tex. Prob. Code, Secs. 95(b)(1) (part), (2) (part).)

Source Law

(1)  … No citation or notice is required.

(2)  … Citations shall be issued and served on each such devisee and heir by registered or certified mail.

Revised Law

Sec. 501.004.  RECORDING BY CLERK.  (a)  If a foreign will submitted for ancillary probate in this state has been admitted to probate or otherwise established in the jurisdiction in which the testator was domiciled at the time of the testator's death, it is the ministerial duty of the court clerk to record the will and the evidence of the will's probate or other establishment in the minutes of the court.

(b)  If a foreign will submitted for ancillary probate in this state has been admitted to probate or otherwise established in a jurisdiction other than the jurisdiction in which the testator was domiciled at the time of the testator's death, and a contest against the ancillary probate is not filed as authorized by Chapter ___ [[[Tex. Prob. Code, Secs. 95(d)(2) (part), 100, 101, 102; revised as Chapter 504]]], the court clerk shall record the will and the evidence of the will's probate or other establishment in the minutes of the court.

(c)  A court order is not necessary for the recording of a foreign will in accordance with this section.  (Tex. Prob. Code, Secs. 95(d)(1) (part), (2) (part).)

Source Law

(d)  Probate Accomplished by Recording.  (1)  Will admitted in domiciliary jurisdiction.  If the will has been probated or established in the jurisdiction in which the testator was domiciled at the time of his death, it shall be the ministerial duty of the clerk to record such will and the evidence of its probate or establishment in the minutes of the court.  No order of the court is necessary… .

(2)  Will admitted in non-domiciliary jurisdiction.  If the will has been probated or established in another jurisdiction not the domicile of the testator, [its probate in this State may be contested in the same manner as if the testator had been domiciled in this State at the time of his death].  If no contest is filed, the clerk shall record such will and the evidence of its probate or establishment in the minutes of the court, and no order of the court shall be necessary… .

Revisor's Note

Section 95(d)(2), Texas Probate Code, provides for the recording by the court clerk of a foreign will that was probated in a jurisdiction other than the jurisdiction that was the testator's domicile at the time of death, provided that "no contest is filed" against the will.  The contest of a foreign will is governed by Chapter _____ [[[Chapter 504]]] of this code, and the revised law adds a reference to that chapter for the convenience of the reader.

Revised Law

Sec. 501.005.  EFFECT OF FILING AND RECORDING FOREIGN WILL.  On filing and recording a foreign will in accordance with this chapter, the foreign will:

(1)  is considered to be admitted to probate; and

(2)  has the same effect for all purposes as if the original will had been admitted to probate by order of a court of this state, subject to contest in the manner and to the extent provided by Chapter ___ [[[Tex. Prob. Code, Secs. 100, 101, 102; revised in Chapter 504]]].  (Tex. Prob. Code, Secs. 95(d)(1) (part), (2) (part).)

Source Law

(1)  … When so filed and recorded, the will shall be deemed to be admitted to probate, and shall have the same force and effect for all purposes as if the original will had been probated by order of the court, subject to contest in the manner and to the extent hereinafter provided.

(2)  … When so filed and recorded, it shall be deemed to be admitted to probate, and shall have the same force and effect for all purposes as if the original will had been probated by order of the court, subject to contest in the manner and to the extent hereafter provided.

Revisor's Note

(1)  Sections 95(d)(1) and (2), Texas Probate Code, refer to the "force and effect" of the filing and recording of a foreign will in accordance with this chapter.  The revised law omits the reference to "force" because, in context, the meaning of that term is included in the meaning of "effect."

(2)  Sections 95(d)(1) and (2), Texas Probate Code, provide that a foreign will is subject to contest in the manner and to the extent "hereinafter" or "hereafter" provided.  The revised law substitutes a reference to Chapter ___ [[[Chapter 504]]] of this code for "hereinafter provided" and "hereafter provided" because that chapter contains the relevant law prescribing the procedures and grounds for contesting a foreign will.

Revised Law

Sec. 501.006.  ANCILLARY LETTERS TESTAMENTARY.  (a)  On application, an executor named in a foreign will admitted to ancillary probate in this state in accordance with this chapter is entitled to receive ancillary letters testamentary on proof made to the court that:

(1)  the executor has qualified to serve as executor in the jurisdiction in which the will was previously admitted to probate or otherwise established; and

(2)  the executor is not disqualified from serving in that capacity in this state.

(b)  After the proof required by Subsection (a) is made, the court shall enter an order directing that ancillary letters testamentary be issued to the executor.  The court shall revoke any letters of administration previously issued by the court to any other person on application of the executor after personal service of citation on the person to whom the letters were issued.  (Tex. Prob. Code, Sec. 105.)

Source Law

Sec. 105.  When a foreign will is admitted to ancillary probate in accordance with Section 95 of this Code, the executor named in such will shall be entitled to receive, upon application, letters testamentary upon proof that he has qualified as such in the jurisdiction in which the will was admitted to probate, and that he is not disqualified to serve as executor in this State.  After such proof is made, the court shall enter an order directing that ancillary letters testamentary be issued to him.  If letters of administration have previously been granted by such court in this State to any other person, such letters shall be revoked upon the application of the executor after personal service of citation upon the person to whom such letters were granted.

Revised Law

Sec. 501.007.  EFFECT ON PROPERTY.  A foreign will admitted to ancillary probate in this state as provided by this chapter after having been admitted to probate or otherwise established in the jurisdiction in which the testator was domiciled at the time of the testator's death is effective to dispose of property in this state regardless of whether the will was executed with the formalities required by this title.  (Tex. Prob. Code, Sec. 95(e).)

Source Law

(e)  Effect of Foreign Will on Local Property.  If a foreign will has been admitted to probate or established in the jurisdiction in which the testator was domiciled at the time of his death, such will, when probated as herein provided, shall be effectual to dispose of both real and personal property in this State irrespective of whether such will was executed with the formalities required by this Code.

Revisor's Note

(1)  Section 95(e), Texas Probate Code, refers to the probate of a will as "herein" provided, meaning as provided by Section 95, Texas Probate Code. The revised law substitutes "by this chapter" for "herein" because the relevant part of Section 95, Texas Probate Code, is revised as this chapter.

(2)  Section 95(e), Texas Probate Code, refers to execution of a will with the formalities required by "this Code," meaning the Texas Probate Code.  The revised law substitutes a reference to "this title" for the reference to "this Code" because the provisions of the Texas Probate Code that relate to the formalities for execution of a will are revised in Title 2 of this code, and this chapter is included in that title.

Revised Law

Sec. 501.008.  SETTING ASIDE OF CERTAIN FOREIGN WILLS.  (a)  This section applies only to a foreign will admitted to ancillary probate in this state, in accordance with the procedures prescribed by this chapter, based on the previous probate or other establishment of the will in the jurisdiction in which the testator was domiciled at the time of the testator's death.

(b)  The admission to probate in this state of a foreign will to which this section applies shall be set aside if it is subsequently proven in a proceeding brought for that purpose that the foreign jurisdiction in which the will was admitted to probate or otherwise established was not in fact the domicile of the testator at the time of the testator's death.

(c)  The title or rights of a person who, before commencement of a proceeding to set aside the admission to probate of a foreign will under this section, purchases property in good faith and for value from the personal representative or a devisee or otherwise deals in good faith with the personal representative or a devisee are not affected by the subsequent setting aside of the admission to probate in this state.  (Tex. Prob. Code, Sec. 95(f).) 

Source Law

(f)  Protection of Purchasers.  When a foreign will has been probated in this State in accordance with the procedure prescribed in this section for a will that has been admitted to probate in the domicile of the testator, and it is later proved in a proceeding brought for that purpose that the foreign jurisdiction in which the will was admitted to probate was not in fact the domicile of the testator, the probate in this State shall be set aside.  If any person has purchased property from the personal representative or any legatee or devisee, in good faith and for value, or otherwise dealt with any of them in good faith, prior to the commencement of the proceeding, his title or rights shall not be affected by the fact that the probate in this State is subsequently set aside.

Revisor's Note

(1)  Section 95(f), Texas Probate Code, refers to a foreign will "admitted to probate in the domicile of the testator" and provides that admission to probate in this state shall be set aside if it is later shown that the initial jurisdiction in which the will was admitted to probate "was not in fact the domicile of the testator."  The revised law adds "at the time of the testator's death" to the quoted language for clarity and consistency with other language revised in this chapter.

(2)  Section 95(f), Texas Probate Code, refers to any "legatee or devisee."  The revised law omits the reference to "legatee" as unnecessary.  Section 3, Texas Probate Code, revised in this code as Chapter ____, defines "devisee" to include a "legatee."

TLC: Estates and Guardianship Code Proposed Chapters

This web page is published by the Texas Legislative Council and was last updated January 6, 2009.