Probate is the legal process for settling a person’s estate after death, including paying debts and distributing assets. Dealing with the loss of a loved one is already difficult without having to navigate what to do if that loved one owned property in another state or country. When a deceased person (“decedent”) owned such property, their loved ones often have to complete out-of-state probate—a legal process in a court that may be far from them. Fortunately, with the right approach, Texas families can handle this process efficiently and with less stress.
At Massingill, we help families navigate probate with clarity and confidence. Our Texas-based law firm offers flat-fee legal services and provides clear timelines, secure online access to documents, and trusted legal counsel.
What Is Out-of-State Probate?
Probate is the legal process of settling a person’s debts and distributing their property after death. It involves:
- Appointing a personal representative (an executor or administrator),
- Determining whether the will is valid (if one exists),
- Identifying and valuing assets,
- Paying outstanding debts and taxes, and
- Distributing remaining property to heirs or beneficiaries.
Probate courts only have authority over property physically located within their own jurisdiction, meaning the area where particular laws apply. Primary or “domiciliary” probate occurs in the decedent’s home state. So, if the decedent lived in Texas, primary probate occurs in Texas.
Yet, Texas courts cannot distribute property in other states or countries. So, when someone dies owning assets in another state or country, their loved ones often have to complete a secondary probate process—out-of-state or “ancillary” probate.
What Is Ancillary Probate?
Ancillary probate is the technical name for an out-of-state probate proceeding. Through ancillary probate, a court in the jurisdiction where the property is located coordinates with the primary probate court. The out-of-state court issues orders related to the property within its jurisdiction, and the Texas courts issue orders related to the property within Texas.
Complications of Ancillary Probate
Each state sets its own rules for probate, and those differences may impact timing, cost, and eligibility for certain processes. For example:
- Some states require the executor to be a resident or appoint a local co-representative,
- Other states may impose inheritance taxes or require additional court filings or bonds, and
- Deadlines for filing probate documents and notifying creditors can vary significantly.
When the decedent owns international property, probate becomes even more complex. Each country has its own legal system and requirements, leading to potential challenges like:
- Different definitions of what makes a will valid,
- Requirements that documents be officially certified as documents called “apostilles,”
- The necessity of obtaining certified translations for court use, and
- Variations in international tax laws.
Handling international probate can require coordination between a U.S.-based attorney and local counsel in the country where the property is.
How to Probate Out-of-State Property
Managing out-of-state probate can be confusing, but the right steps—and legal support—can help avoid delays and added expenses. Follow the below steps to probate out-of-state property.
1. Determine Whether Out-of-State Probate Is Required
Ancillary probate is usually required when out-of-state property includes:
- Real estate—land, houses, or commercial buildings;
- Titled property—vehicles, boats, or other assets; or
- Tangible personal property—artwork, jewelry, or valuable equipment.
Yet, not all property outside of Texas needs a separate probate proceeding. Some assets bypass the probate process. For example, assets held in a trust, assigned to a named beneficiary (like life insurance), or owned jointly with rights of survivorship may avoid probate.
2. Begin the Primary Probate Case
Before starting any ancillary probate process, you must open the main probate case. To do so, you begin the case like any other probate. If one exists, bring the decedent’s will to a Texas probate court, then request an appointment as executor or administrator—the estate’s personal representative.
Whoever becomes the estate’s representative must then identify and estimate the value of estate assets in Texas and out of state. With their appointment papers, the representative can begin probate proceedings in other jurisdictions.
3. Gather Legal Documents
To start ancillary probate, you will need certified copies of legal documents from the Texas probate court, typically including:
- The decedent’s will;
- The order appointing the personal representative; and
- The court documents officially authorizing the representative to act on behalf of the estate, called letters testamentary for an executor and letters of administration for an administrator.
Copies are generally certified when they have an official court seal and a judge’s signature.
4. Explore Streamlined Alternatives
In some cases, you can use processes offered in other states to simplify the ancillary probate process, such as:
- Small estate procedures. Like Texas, some states allow a shortened probate process for estates below a particular value, often ranging from $25,000 to $150,000;
- Affidavit-based transfers. A method that permits the transfer of property using a sworn written statement (an affidavit) in specific circumstances; and
- Deed-based transfers. You may transfer some property through deeds, similar to Texas’ muniment of title process.
Consulting a probate attorney is the best way to determine whether simplified alternatives are available.
5. File Ancillary Probate
Each state and country has its own probate processes. In most cases, filing ancillary probate includes:
- Filing a petition for ancillary probate in the local court,
- Submitting certified documents from the Texas probate court, and
- Following the jurisdiction’s legal requirements.
Many states allow a simplified out-of-state probate process if probate has started in another state.
Let Massingill Guide You Through Out-of-State Probate
Out-of-state probate cases require experience, precision, and coordination. If you are working through probate involving property outside Texas, contact Massingill. We guide Texas families through these matters with confidence and care. Our probate attorneys help identify whether ancillary probate is needed, gather required documents, and coordinate with courts or attorneys in other jurisdictions to guide you through the out-of-state probate process. Contact us for a free consultation.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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