You don’t have to practice long in Houston before a client shows up with a will written in some strange and forbidding jurisdiction, say . . . Louisiana.
Practice a little longer, and you’ll see wills written in other countries, too. My favorite are the geophysicists. Recently (or never) immigrated, with a house for Mom in the old country, property here they might sell (or not), the next assignment is abroad for three years, and the flight out is Thursday. They sit across the desk from me and ask, in all innocence, “Are our wills okay?”
If you’re like me, you’re not about to start reading Hague Conventions to answer that question. I am a simple man, with a simple mind, and my comfort zone does not encompass international treaties, or, for that matter, Louisiana law.
As a general rule, I usually do new wills or revocable trusts for Americans who move from another state, but I stop and think before doing more than a situs will for anyone with real estate abroad. I’ve only recently started offering self-proving affidavits to cinch up wills drafted in other states.
When I look at a will written elsewhere or counsel clients with family or property abroad, I run through a little checklist.
- Is the testator a U.S. citizen or permanent resident? If so, their world-wide assets are subject to federal estate taxes. Plan on U.S. probate.
- Is the testator domiciled here? Are they likely to die here? Do they have any property here (U.S. situs)? If not, and the testator is not a U.S. citizen or permanent resident, is Texas probate even a remote possibility? If not, conversation over. If they live here but expect to move in a couple of years, I don’t twist arms. It’s okay to assume they’ll live long enough to die elsewhere.
- An overseas house is often for a parent. If the client dies first, can the parent keep it?
- Is property abroad in a common law country, e.g., the U.K.? Civil law, e.g., Italy? Sectarian law, e.g., India (where succession varies among Hindus, Muslims, and Christians)? Forced heirship under civil or sectarian law may leave no room for planning. Ask the client. They know.
- Is the will in English? If not, translation is necessary.
- Was the will attested by two witnesses? If not, game over. It’s not a will and original probate in Texas is not available, unless holographic.
- When and where was the will executed? Texas respects wills if self-proved at the time and place of execution.
- Is the will self-proved under Texas law? If so, you don’t have to research the law of the other jurisdiction. If not, there’s a fix that still might save you the research.
- Is probate in two countries necessary? It often makes sense to keep the original will and prepare a second one just for Texas.
I discuss the work indicated by each answer. By the time I’m done, both the client and I have a good idea which direction to head.
Domicile and Situs
Understanding domicile and situs is key to analyzing the current plans and making new ones. The situs of intangible assets tends to be your domicile. In plain English, for probate and tax purposes, your bank account is located where you live, regardless where the branch is located. If you’re born in Houston, open an account here, and retire to Mexico, the situs of that account is Mexico, and it does not go on a Texas probate inventory. The situs of real property is not where you live, it’s where the property is located, and that never changes, no matter where you move.
Glenn Davis has a beautiful chart with estate tax situs and gift tax situs by type of property. 33 R. Glenn Davis, Administration of the Estate with Cross Border Issues, in 38th Ann. Adv. Estate Planning and Prob. Course Exh. D (2014) (Situs of NRA Property for Estate and Gift Tax Purposes (Generally Speaking)).
Is the Will Attested or Self-Proved?
A will is not attested unless signed by two witnesses at the same time the testator first signs. A will may be self-proved then or later with an affidavit signed by the testator and witnesses. If you’re fuzzy on the requirements of a will, check out Steve R. Akers, Bernard E. Jones, and R. J. Watts, II, Wills Road Map: Practical Considerations in Will Drafting (3rd ed. 2017) (3rd edition update by Casey A. Barthel).
Assume any will is to be recorded as a conveyance and notice of title. If so, a sworn translation is required. Tex. Prop. Code § 11.002. An apostille or a consular official works, but Texas will respect the local notary, too. Tex. Civ. Prac. & Rem Code § 121.001.
Proving up a Texas will can be hard enough. Someone botches the self-proving affidavit, or forgets it altogether, and you’ll find yourself scrambling to locate witnesses and cajole them into testifying about a will in which they, literally and legally, have no interest. Clients don’t greet that bill with joy.
Now imagine the same will, only drafted in another jurisdiction. Texas treats that will as self-proved if the other state or country would. Tex. Estates Code § 256.152(b). Lovely. Now instead of locating Louisiana witnesses, the Texas lawyer gets to research Louisiana law.
If you have a living, breathing client with an out-of-state will, whether drafted in Louisiana or Luxembourg, you don’t have to do a new will. You can add a self-proving affidavit to the old one. Don’t add the standard form, the one found at Estates Code Section 251.104. That’s for Texas wills. Instead, use the one at Section 256.152(c). That’s the one designed for foreign wills. It relieves the probate applicant of finding witnesses and of explaining the other jurisdiction’s laws.
Probate in two countries can be awkward. Is one will for both countries best? What language do we use? Which country goes first? If the original is filed in Texas, will our clerk send the will to the other country for probate there?
Maybe each country needs its own will. Situs wills are fraught with peril, and many lawyers are violently opposed to them. I am not one of those lawyers. Few of my clients will pay more than one attorney, in different countries, to discuss and draft a single will. For better or worse, my solution has been to prepare a Texas will now and let the client prepare or update the foreign will later.
I draft a Texas will, then add language to coordinate revocation and the scope of disposition with the foreign will and assets. I can completely revoke all wills, or just U.S. wills. I can do a partial revocation, e.g., only those provisions concerning U.S. situs assets. I can add language preventing accidental revocation of the Texas will by a later foreign will.
I can limit the disposition of assets to property located in the U.S. or I can expand it to include some foreign countries but not others. I’ll use different combinations depending whether a foreign will’s already been executed or changes are planned. I’ll leave the client language that foreign counsel can snap into the next foreign will, to minimize conflicts with the Texas plan.
Another Glenn Davis article has been my touchstone. 26 R. Glenn Davis, International Issues in Estate Administration, in 34th Ann. Adv. Estate Planning and Prob. Course Exh. E (2010) (Sample Revocation and Scope of Disposition Provisions).
If you want to scare yourself out of ever doing a situs will, read Henry Christensen, III, International Estate Planning, Second Edition ch. 6 (2010) (Multijurisdictional and Separate Situs Wills). His tax allocation clauses are worth reviewing. If the client is wealthy enough that federal estate taxes will be due, a single, multi-jurisdictional will may be a better idea than several poorly coordinated situs wills.
Probate is the end game. If the testator dies domiciled in Texas, the usual probate rules apply, with one exception. If the will was first probated elsewhere, the probated will may be recorded here, essentially as a muniment of title. Estates Code ch. 503. This is helpful when foreign counsel snatches the will and files it instead of waiting on Texas probate.
If the testator dies domiciled elsewhere, but probate is necessary in Texas, the rules are a little different. Original probate is governed by Estates Code Chapter 502. If the will was already probated elsewhere, ancillary probate is governed by Chapter 501. The recording procedure under Chapter 503 is also available when the testator dies domiciled elsewhere.
There’s nothing scary or onerous about any of Chapters 501-503, found in Subtitle K of the Estates Code. Each of them will feel familiar to practitioners with the least experience with Texas probate. Heads up: Subtitle K doesn’t expressly define “foreign wills,” but it’s clear it means wills where the testator was domiciled elsewhere at death. If the testator lived in Houston, signed a Texas will here, then moved to Colorado, at death, the will is considered “foreign.” Go figure.
The Texas Probate System (4th Ed. 2018) has a thorough, practical treatment of original and ancillary probate of foreign wills. See Special Instruction 91—Ancillary Probate (AP) or Recording (RW) of Wills Previously Probated Elsewhere and Special Instruction 15—Jurisdiction and Venue.
Don’t Be Afraid
Foreign wills are overwhelming until you start breaking them down: is this really a will, can I read it, can I probate it, can I record it, should I fix it? Will probate be necessary in another country? If you’re comfortable working with Texas wills, you’re competent to read a foreign one.
A Favor to Ask
Texas respects the will executed elsewhere as self-proven if the other jurisdiction did too. Estates Code § 256.152(b). Wouldn’t a list of each state’s statutes regarding self-proven wills be handy? I have one, but it’s dated, and I’m looking for a current copy, or, better yet, a citation or URL to share. If you have any leads, please comment, below.