Underwriting Q&A: Is an ancillary probate proceeding necessary in the State where the property is located (TX, FL, NM, AZ) when there is a foreign (out of state or another country) probate or administration?

20 Apr

Underwriting Q&A: Is an ancillary probate proceeding necessary in the State where the property is located (TX, FL, NM, AZ) when there is a foreign (out of state or another country) probate or administration?

TEXAS

An ancillary probate procedure is not always required in Texas.

The easiest method for handling a foreign probate (“foreign” is defined as any State in the USA or a foreign country) in Texas is authorized under Sections 503.001 et seq of the Texas Estates Code, which is basically a muniment of title procedure.  Under section 503.001, an authenticated copy of the Will and the foreign Court Order admitting the Will to probate are recorded in the real property records of the county where the property is located.

Sec. 503.001.  AUTHORIZATION TO RECORD CERTAIN FOREIGN TESTAMENTARY INSTRUMENTS IN DEED RECORDS.  (a)  A copy of a will or other testamentary instrument that conveys, or in any other manner disposes of, land in this state and that has been probated according to the laws of any state of the United States or a country other than the United States, along with a copy of the judgment, order, or decree by which the instrument was admitted to probate that has the attestation, seal, and certificate required by Section 501.002(c), may be filed and recorded in the deed records in any county in this state in which the land is located:

(1)  without further proof or authentication, subject to Section 503.003; and

(2)  in the same manner as a deed or conveyance is required to be recorded under the laws of this state.

(b)  A copy of a will or other testamentary instrument described by Subsection (a), along with a copy of the judgment, order, or decree by which the instrument was admitted to probate that has the attestation and certificate required by Section 501.002(c), is:

(1)  prima facie evidence that the instrument has been admitted to probate according to the laws of the state or country in which it was allegedly admitted to probate; and

(2)  sufficient to authorize the instrument and the judgment, order, or decree to be recorded in the deed records in the proper county or counties in this state.

An authenticated copy must meet the requirements of Section 501.002(c):

(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; (Note that under Sec. 503.002.  ORIGINAL SIGNATURES NOT REQUIRED.  Notwithstanding Section 501.002(c), the original signatures required by that section may not be required for a recordation in the deed records in accordance with Section 503.001)

(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.

Once the authenticated copy is recorded, it is sufficient to transfer title to the devisees named in the Will.

Sec. 503.051.  RECORDED FOREIGN TESTAMENTARY INSTRUMENT AS CONVEYANCE.  A copy of a foreign will or other testamentary instrument described by Section 503.001 and the copy of the judgment, order, or decree by which the instrument was admitted to probate that are attested and proved as provided by that section and delivered to the county clerk of the proper county in this state to be recorded in the deed records:

(1)  take effect and are valid as a deed of conveyance of all property in this state covered by the instrument; and

(2)  have the same effect as a recorded deed or other conveyance of land beginning at the time the instrument is delivered to the clerk to be recorded.

Sec. 503.052.  RECORDED FOREIGN TESTAMENTARY INSTRUMENT AS NOTICE OF TITLE.  A copy of a foreign will or other testamentary instrument described by Section 503.001 and the copy of the judgment, order, or decree by which the instrument was admitted to probate that is attested and proved as provided by that section and filed for recording in the deed records of the proper county in this state constitute notice to all persons of the:

(1)  existence of the instrument; and

(2)  title or titles conferred by the instrument.

Provided that the Will grants a power of sale to the foreign Executor and/or Administrator, the Executor may conduct the sale of the real property without further formalities.

Sec. 505.052.  POWER TO SELL PROPERTY.  (a)  If a foreign will has been recorded in the deed records of a county in this state in the manner provided by this subtitle and the will gives an executor or trustee the power to sell property located in this state:

(1)  an order of a court of this state is not necessary to authorize the executor or trustee to make the sale and execute proper conveyance; and

(2)  any specific directions the testator gave in the foreign will respecting the sale of the estate property must be followed unless the directions have been annulled or suspended by an order of a court of competent jurisdiction.

(b)  Notwithstanding Section 501.002(c), the original signatures required by that section may not be required for purposes of this section.

There will continue to be many situations where an ancillary probate action is needed, such as a foreign probate and Will that is not in the English language or where it is unclear who has inherited the property consistent with Texas law or the Executor/Administrator intends to conduct the sale but was not granted a power of sale.

FLORIDA

When a nonresident owner of Florida real property dies intestate (without a will), a foreign personal representative does not have power or authority to pass good title to the real property located in Florida, without a Florida court order. 

If the Florida claims period has not expired, an intestate estate of a nonresident owner must be administered through a Florida ancillary or summary administration.

If the foreign decedent died intestate and the Florida claims period has expired, the transfer of clear title can occur under one of the following conditions: 

1. Completed administration in the domicile state of the decedent identifying heirs recognized under Florida laws.  Title transfers from the heirs and not personal representative.

2. Summary administration proceedings in Florida. Title transfers through the personal representative; or

3. Florida court order under a separate Florida civil action to determine the heirs.   

When a nonresident holds title to Florida real property and dies with a foreign will (testate), one of the following must be met to qualify as an insurable transfer:

  1. Formal or summary ancillary administration of the estate when the claims period has not expired;
  2. Admitting the foreign will to record (after expiration of claims period) by petitioning a Florida court and obtaining an order from the Florida court specifically admitting the will to record in Florida.  Title transfers from the heirs and not personal representative. ; 
  3. For estates with property in Florida valued less than $50,000, the foreign personal representative can petition the court to admit the foreign will to Florida probate by filing the will and  domiciliary estate  administration transcript as is necessary to show the beneficiaries of the estate as required by the Florida Probate Rules.  Title transfers through the personal representative.

Arizona and New Mexico

AZ: Yes.  See A.R.S. 14-4204

NM: Yes.  See N.M.S.A. 45-4-204 

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