Out-of-state probate and Texas mineral rights: Chapter 503 recording

Why home-state probate alone leaves Texas royalties in suspense

Real property is governed by the law of the state where the land sits (lex loci rei sitae), and county deed records are indexed county by county. Even if an estate was fully probated in Oklahoma City, Denver, or Los Angeles, the County Clerk in Midland County or Karnes County, Texas has no record of that probate until the probate documents are recorded in that Texas county. Until that happens, the operator’s division order examiner sees the deceased owner as the record owner and holds royalties in suspense.

Recording a foreign will in the deed records (Chapter 503)

Texas Estates Code § 503.001(a) provides that an attested copy of a will devising property in Texas, together with the copy of the probate of the will from the other state, may be filed and recorded in the deed records of any Texas county in which the real property is located, in the same manner as deeds and conveyances are required to be recorded.

Under § 503.051, a foreign will and its probate filed and recorded under Chapter 503 are effective to pass title to the Texas real property to the devisees named in the will. Furthermore, unlike an original Texas probate application (which generally faces a four-year window under § 256.003), Chapter 503 sets no four-year deadline for recording a will that was timely probated in the decedent’s home state.

What an exemplified (three-way) probate packet contains

A simple photocopy or a one-stamp clerk copy is not enough for Chapter 503. Section 503.001(b) incorporates the attestation requirements of § 501.002(c) (modeled on the federal authentication statute, 28 U.S.C. § 1738):

1. The Last Will and Testament and the Order Admitting Will to Probate: Complete copies from the home probate court (plus the application/petition for probate and any final decree of distribution or executor’s deed if the home state uses one).
2. Clerk’s attestation and court seal: The clerk of the foreign probate court attests that the copies are true and complete copies of the record on file.
3. Judge’s certificate: The presiding judge or magistrate of that court signs a certificate stating that the clerk’s attestation is in due form, accompanied by the clerk’s certificate that the judge is duly commissioned and qualified.

If the decedent owned minerals in three different Texas counties (for example, Reeves, Loving, and Pecos Counties), the exemplified packet is recorded in the Official Public Records (deed records) of each of the three counties.

When ancillary probate in a Texas court (Chapter 501) is needed instead

Recording in the deed records under Chapter 503 works when the home-state will was admitted to probate and devises the property (or grants a power of sale under § 503.053). A formal ancillary probate in a Texas probate court under Chapter 501 is needed when:

• The foreign will was never probated in the home state (for example, the decedent’s only asset was Texas minerals, so no probate was opened at home).
• A Texas executor needs formal Texas Letters Testamentary to litigate a lawsuit, administer unpaid Texas estate debts, or exercise powers not granted in the will itself.
• The decedent died without a will in another state: in that case, Chapter 503 does not apply because there is no will. An out-of-state intestate estate is cleared in Texas by a recorded Texas affidavit of heirship (Chapter 203) or a Texas court determination of heirship (Chapter 202), because Texas intestate succession law (§ 201.001-.003) governs Texas real property regardless of what a foreign state’s intestate court order said.

Sources

1. Tex. Est. Code ch. 503, Recording of Foreign Testamentary Instrument, §§ 503.001 to 503.053. https://statutes.capitol.texas.gov/Docs/ES/htm/ES.503.htm#503.001
   Filing and recording a probated foreign will in the Texas county deed records as a muniment of title.
2. Tex. Est. Code ch. 501, Ancillary Probate of Foreign Will, § 501.002. https://statutes.capitol.texas.gov/Docs/ES/htm/ES.501.htm#501.002
   Authentication and exemplification requirements for foreign probate records.