Moved to Texas … Should I update and “Texasize” my will or trust?

Recently released estimates from the U.S. Census Bureau show that Texas is now home to more than 30 million people, making Texas and California the only states to eclipse the 30 million mark.  Population estimates also indicate that Texas added approximately 475,000 new residents between July 1, 2021, and July 1, 2022 alone.  This Texas-sized herd of people moving to the Lonestar State begs the question, will Texas probate courts accept a will for probate if it was drafted in another state?

The probate lawyerly answer is – it depends, but likely yes.  Texas law used to require that all wills meet the Texas-specific legal requirements before admitting a will to probate.  That meant that even though you may have crafted a will in accordance with another state’s laws, if their requirements were different than those required by Texas, the will may not be admitted to probate in Texas.   Now, however, Texas law provides for an exception for the probate a will that was legally executed in another state but prior to living in Texas, so long as the will meets the requirements of the jurisdiction that the person lived when the will was executed.  So, in short, your will that you created while living in Florida, Colorado, New York, or wherever, may still be probated in Texas so long as it met the legal requirements of the jurisdiction you previously lived in at the time you executed the will.

That said, it may still be advisable for new Texas residents to update their wills or trusts upon moving to Texas.  For one reason, Texas has probate options that may be quicker and easier to navigate, but your will must contain the proper language before being allowed to take advantage of Texas probate options.  For example, if your will is made “self-proved”, you may be able to go through probate without having to provide testimony from witnesses other than the probate applicant.  In other words, self-proved wills can reduce costs and cut down the number of people you have to coordinate while setting a hearing.  Chances are, if you moved to Texas from California, Illinois, Indiana, Maryland, Ohio, Nevada, or District of Columbia, your will is not made self-proved, as these states either don’t recognize self-proved affidavits, or otherwise don’t require self-proved affidavits. 

Another reason you may want to update your will is because, unlike some jurisdictions, Texas law allows for probate without having to issue a bond, but again, your will must contain the proper language to take advantage of the option to forego submitting a bond.  Similarly, Texas law, allows for a probate court to order an independent administration, rather than a dependent administration if the proper language is included in the will.  Independent administration is a great option to pursue because it requires significantly less court oversight, is much more cost effective, and the role of an executor is less rigorous.  Caveat:  You may still have a bond waived and/or be admitted to an independent administration even if the will doesn’t contain the proper language; however, you’ll likely have to file additional request to the court to do so, which could mean more court fees and legal costs.    

Although your trust does not have the same disadvantages as a will would under Texas law there are a few advantages you want to have added to your trust to take advantage of Texas’ homestead and other protections.  We refer to this in our office as “Texasizing” your trust. 

Lastly, you may want to update your will or trust for the simple fact that your will specifically gifts property that you may have sold during your move to Texas.  An updated will can prevent confusion and perhaps squash any potential challenges related to property you no longer own.

Whether you’re new to Texas, or a life-long Texan, the estate planning and probate team at Thrash, Carroll & Vanway Law Group wants to assist you in developing the best estate plan for your current situation.  If you’re not sure whether you should update your will, schedule a complimentary review meeting with one of our attorneys and we’d be happy to look it over and provide you with the legal advice you seek.  Or perhaps, you’re in need of probating a will drafted in another state.  We’d be happy to assist you in navigating the best probate option.  Contact us at 512.263.5400 or to continue the discussion.