Probating is the process in which a person’s will proved valid by a court. After that, the court will identify property, appraise said property, pay taxes and then distribute the remaining property according to that state’s law.
Probating a Texas Will
In Texas, a person who’s will is to be probated is known as a testator. To probate a will, the testator must be dead. Probating a will before the testator dies is not allowed. Then, four years must not have passed since the testator’s death and the court must have jurisdiction and venue.
The will must also be self-proved. This means a court will accept the will as true. In Texas, that means a self-proved affidavit must be attached to the will. The self-proved affidavit must be made by the testator and signed by witnesses before an office authorized to administer oaths. Finally, the will must also not have been revoked. After all of those elements have been satisfied, the will can be executed in Texas.
Probating a will from somewhere else in Texas
If the will is from another state or a foreign country, the will can be probated if the will was self-proved in accordance with the law from where it was made. For example, if a will created in Oklahoma was self-proved according to the requirements in Oklahoma, it could be probated in Texas.
Texas courts will also find a will to be self-proved from another state or foreign country if it was executed in the state or country where the testator was domiciled or had a place of residence at the time and there is an affidavit attached. The affidavit needs to say that the testator signed it as the will willingly, or had another sign for him or her, that it was voluntary, and that the testator was of sound mind, without undue influence and eighteen or older or had another factor which allowed the will to be signed underage (i.e. married, member of the United States armed forces, etc.). The affidavit also need to say that witnesses were present when the will was signed according to the previously mentioned requirements.
Probating a Texas will in another state
The Uniform Probate Code was established in 1969 as a way to simplify and clarify the process around probating a will. The American Bar Association has approved the code; however, only 18 states have enacted the code in part or in full.
States that use the Uniform Probate Code can probate any will that is valid and has not been revoked as long as venue is proper, the testator is dead, and has been commenced within three years.
If the state is not a member of the Uniform Probate Code, you will need to check the laws of those states. For example, in Oklahoma, a will that is duly proved and allowed in any state or territory from the United States can be probated as long as it was recorded in a county where the testator has an estate.
The Takeaway: There can be many steps and requirements to getting a will probated. It is important to follow the law of the state the will is being probated in to make sure the process goes smoothly.
– The Business Team
Scott | Josh | Jeremy
The Allen Firm, PC
181 S. Graham Street | Stephenville, Texas 76401
Ph: 254.965.3185 | Fax: 254.965.6539
The Allen Firm, PC is composed of a team of attorneys located in Stephenville, Texas. Our mission is to improve people’s lives by providing reliable and practical help with their legal matters while operating under our values of honoring people, operating with integrity and striving for excellence. We offer help in forming businesses or companies, estate planning, lawsuits, real estate, probate, oil and gas, collections, agriculture, bankruptcy, family law, and accident and injuries.