The Perils of an Executor - Part 2

If you're just joining us, you might want to go back and read the 24 April blog for the first set of executor challenges we discussed.  It's not critical to this week's topics, but there's some good stuff in there. By the way, most of these answers apply to both independent executors ("IE", named in the will and received letters testamentary from the court) and independent administrators ("IA", not named as executor, or there was no will, but got letters of administration from the court - when I use "executor", I generally mean either of these). Now, to jump into more potential headaches!

1. The person whose estate I'm administering owned a home and either (a) he bequeathed it to a particular person or (b) it's part of the general estate and the beneficiary wants to keep it.  What do I do?  This is a fairly uncomplicated one - as the executor, you can transfer the property by way of an Executor's Deed to the beneficiary.  The deed should be filed in the property records of the county where the property is located - if it's in the county where the probate was granted.  One thing to be aware of is that most wills transfer property "subject to all liens and encumbrances", which means that if there's a mortgage on the property, the person who gets the property also is responsible for the mortgage.

2. Okay, but he also had a vacation home in another county - can I just do another deed?  Yeah, not exactly.  Real property (land) that passes by will or inheritance has to be probated in the county in which it's located (called in rem jurisdiction - interesting but nobody cares except lawyers).  What usually happens is that after the will has been probated in the county where the person dies, there's a (usually purely paper) process called "ancillary probate", where the court documents from the first probate are filed in the records of the county(ies) where any other real estate of the decedent is located.  THEN an executor's deed is filed in the applicable county.

3. How about the real property he owned in another state?  How does that get treated?  The answer depends on the state where the other property is located.  Every state has different requirements: in my experience, most will have an ancillary probate process that much like the process in Texas (purely paper); however, some states (Florida and New Mexico come to mind) require a partial or complete probate process that may force you to hire an attorney licensed in that state to get property transferred.  The best thing to do is TELL YOUR PROBATE LAWYER ABOUT ALL THE PROPERTY THE DECEDENT OWNED right at the beginning, so the complexity and cost can be factored in.

As always, this legal information is based on Texas law because I'm a Texas lawyer. It's not legal advice, and each case is different, so be sure to contact a law firm or attorney who practices a lot of probate if you have questions about your situation.