By Kirk R. Wilson, J.D., LL.M.

People relocating to Texas from another state often ask whether their estate planning documents created outside Texas need to be redone or revised to be effective in Texas. Generally, each state recognizes the validity of estate planning documents prepared in another state as long as they are valid under the laws of that state. Nevertheless, there are good reasons to update and “Texanize” certain estate planning documents in order to make them more effective in Texas. Wills are a primary example. In Texas, it is highly desirable to have a Will that appoints an “Independent Executor” and is self-proving under Texas law. Without an “Independent Executor” there will be a “dependent administration”, which is an extremely restrictive method for administering a decedent’s estate. The estate representative is at all times subject to direct court approval and supervision. With an “independent administration”, on the other hand, there is no court participation in the administration of the estate other than confirming the validity of the Will, appointing the Independent Executor, making sure notice is given to beneficiaries and creditors, and approving an inventory of assets and list of claims or an affidavit in lieu of an inventory. So unless an out-of-state Will specifically appoints an “Independent Executor” and provides that the executor shall act free from the control of the Court, it should be amended (by means of a Codicil) or redone to so provide. In order to simplify the admission of a Will to probate in Texas, and to avoid the necessity for live testimony by the subscribing witnesses (who are not in Texas), it should be “self-proving”. This requires that the Will include a notarized self-proving affidavit by the testator and the witnesses. Many states do not require the notarization of Wills, and so in most cases a Will created in another state will need to be amended (by Codicil) or redone to make it self-proving in Texas. Powers of Attorney, both for financial matters and health care, created under the laws of another state, will be valid in Texas but may create problems if it becomes necessary to use them. This is because banks, brokers, care facilities, and medical personnel are familiar with the Texas statutory forms, but may not be comfortable accepting an out-of-state form, at least not without running it by their legal counsel. At best, this can cause a frustrating delay, and at worst, the out-of-state form may be rejected, and require a court action to have it accepted. So to avoid these potential problems, it is advisable to have out-of state durable powers of attorney for health care and for financial matters redone using Texas-specific forms. A revocable living trust created in another state will be valid in Texas, but if a husband and wife each have separate living trusts created in a non-community-property state, they may want to consider consolidating their individual trusts into a single joint living trust now that they are in a community property state. They will need to discuss the “pros” and “cons” of this with their estate planning attorney here in Texas. So while Texas recognizes the validity of estate planning documents created in another state in accordance with the laws of that state, it is nevertheless advisable to have those documents reviewed by Texas estate planning counsel and revised as appropriate in order to avoid any potential future problems.

[The author is a Woodlands-based estate planning attorney at the firm of O’Donnell, Ferebee, Medley & Frazer, P.C. He is licensed to practice law in Texas and California, is a board-certified probate, estate planning and trust law specialist in California, and holds an advanced law degree (LL.M.) in taxation. He can be reached at (281) 875-8200. The firm’s website is www.ofmflaw.com.]

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