Full question:
My mother died intestate in Ruidoso, NM, where she lived. She owens a small tract of property in Callahan Co., TX with a value less than $50,000. Where should we file a Small Estate Affidavit? Or can I file the affidavit in my county of residence?
- Category: Wills and Estates
- Subcategory: Small Estates Affidavit Law
- Date:
- State: Texas
Answer:
Generally, the estate of a decedent is probated where the decedent resided at the time of death. Real property located in another state may need to be probated in that state. It is possible that a will probated in NM may be used to transfer the property on the deed records in Texas. In some cases, for example, real property owned by joint tenants with a right of survivorship, tenants by the entireties, and property held in trust pass outside the probate process. I suggest calling the land recorder's office in the county where the property is located to inquire what they need to transfer title of the deceased. Procedures vary by county, often a death certificate is required.
Please see the folllowing TX statutes:
§§ 96 PROB. CODE. Filing and Recording Foreign Will in Deed Records
When any will or testamentary instrument conveying or in any manner
disposing of land in this State has been duly probated according to the
laws of any of the United States, or territories thereof, or the District
of Columbia, or of any country out of the limits of the United States, a
copy thereof and of its probate which bears the attestation, seal and
certificate required by the preceding Section, may be filed and recorded
in the deed records in any county of this State in which said real estate
is situated, in the same manner as deeds and conveyances are required to
be recorded under the laws of this State, and without further proof or
authentication; provided that the validity of such a will or testamentary
instrument filed under this Section may be contested in the manner and to
the extent hereinafter provided.
§ 98 PROB. CODE. Effect of Recording Copy of Will in Deed Records
Every such foreign will, or testamentary instrument, and the record of
its probate, which shall be attested and proved, as hereinabove
provided, and delivered to the county clerk of the proper county in this
State to be recorded in the deed records, shall take effect and be valid
and effectual as a deed of conveyance of all property in this State
covered by said foreign will or testamentary instrument; and the record
thereof shall have the same force and effect as the record of deeds or
other conveyances of land from the time when such instrument is delivered
to the clerk to be recorded, and from that time only.
Please see the following NM statute:
45-3-201. Venue for first and subsequent estate
proceedings; location of property.
A. Venue for the first informal or formal testacy or
appointment proceedings after a decedent's death is:
(1) in the county where the decedent had his domicile at the
time of his death; or
(2) if the decedent was not domiciled in New Mexico, in any
county where property of the decedent was located at the
time of his death.
B. Venue for all subsequent proceedings is in the place
where the initial proceeding occurred, unless the initial
proceeding has been transferred as provided in Section 1-303
or Subsection C of this section.
C. If the first proceeding was informal, on petition of an
interested person and after notice to the proponent in the
first proceeding, the district court in the place where the
initial proceeding occurred, upon finding that venue is
improper, may transfer the proceeding and the file to a
court where venue is proper.
D. For the purpose of aiding determinations concerning
location of assets which may be relevant in cases involving
non-domiciliaries, a debt, other than one evidenced by
investment or commercial paper or other instrument in favor
of a non-domiciliary, is located where the debtor resides
or, if the debtor is a person other than an individual, at
the place where it has its principal office. Commercial
paper, investment paper and other instruments are located
where the instrument is. An interest in property held in
trust is located where the trustee may be sued.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
