The Cabin She Never Thought About
Sandra Kimball spent twenty-two summers at a small cabin near Taos, New Mexico. She and her late husband had bought it in 1998 for $87,000 — a simple place, two bedrooms, a covered porch that faced the Sangre de Cristo Mountains. After he died, Sandra kept going. It became hers in a way the house in Plano never quite was: quiet, unhurried, free from obligations.
When Sandra died in the fall of 2024 at seventy-eight, her daughter Rachel was the executor named in Sandra's Texas will — a carefully drafted document prepared by a Dallas estate planning attorney in 2019. Rachel assumed the process would be straightforward. The Texas attorney would handle the will, the properties would transfer, and life would go on.
What Rachel didn't know — what no one had told her — was that Texas courts have no jurisdiction over real property in New Mexico. The cabin was, in the eyes of Texas law, beyond reach.
To transfer the Taos property, Rachel needed a separate attorney licensed in New Mexico, a separate probate proceeding filed in a New Mexico court, and a separate set of ancillary letters testamentary issued by a New Mexico judge. The process took eleven months and cost roughly $9,400 in additional legal fees and court costs — on top of the Texas probate. The cabin Sandra had loved for twenty-two years created more legal complexity after her death than everything else she owned combined.
What a Will Actually Does — and Where It Stops
Most people treat a will as a universal document. Sign it in Texas, and it speaks to everything you own, everywhere. This is intuitive but legally wrong.
A will is a set of instructions to a court. Specifically, it is a set of instructions to the probate court in the county where you lived when you died. That court — in Collin County, in Tarrant County, wherever — has jurisdiction over the estate and can authorize your executor to distribute your assets. For most assets, this works seamlessly: bank accounts, investment accounts, personal property, and Texas real estate can all be administered through a Texas probate proceeding under the Texas Estates Code.
Real property, however, is different. Land and buildings are governed by the laws of the state where they physically sit. This foundational principle — sometimes called the lex situs rule, Latin for "law of the place" — means a Texas probate court cannot issue an order directing how title to a New Mexico cabin is transferred. New Mexico's courts handle New Mexico land. Colorado's courts handle Colorado property. If you own real property in another state at your death, that state's probate court must issue its own authority before title can legally change hands.
This secondary proceeding — opened in the other state after the primary probate in your home state — is called ancillary probate. It's not a theoretical concern. It's a concrete, costly, time-consuming process that thousands of Texas families encounter every year, almost always without warning.
Where North Texas Families Most Often Get Caught
The DFW Metroplex has a particular geography of second properties. North Texas families are disproportionately likely to own real estate outside the state — and disproportionately likely to have never thought about the estate planning consequences.
The most common patterns:
- New Mexico mountain cabins. Taos, Red River, and Ruidoso have drawn Texas families for generations. Relatively affordable, close enough to drive from Dallas or Fort Worth, these properties feel permanent enough to hold for decades — and transfer between generations with all the legal complexity that entails.
- Colorado ski and mountain property. Properties near Breckenridge, Steamboat Springs, or the Arkansas River valley are popular with DFW high earners. These are often the most valuable out-of-state holdings and can involve Colorado's distinct probate system at significant cost.
- Oklahoma and Arkansas lake properties. Lake Texoma, Lake Eufaula, and the Ozarks host hundreds of Texas-owned cabins and lake lots. Because the properties are modestly valued, families often don't see the need for professional estate planning — and discover the need for ancillary probate at the worst possible moment.
- Florida condos. Texans who spend winters in Florida frequently own rather than rent. Florida probate, while functioning efficiently, still requires a Florida-licensed attorney and a separate Florida court filing.
- Inherited land in other states. Many Collin County families have roots elsewhere — East Texas communities that crossed state lines, Louisiana, Arkansas, Tennessee. When parents or grandparents die and leave land scattered across jurisdictions, heirs must probate separately in each one.
What Ancillary Probate Actually Looks Like
The process begins with the primary probate — the Texas proceeding where the will is admitted and the executor is authorized to act. That executor then takes the Texas court's documentation and initiates a separate proceeding in each state where the decedent owned real property.
Depending on the state, this typically involves:
- Filing the Texas will (or a certified copy) with the foreign probate court
- Petitioning for ancillary letters testamentary — the foreign court's authorization for the executor to act on that state's property
- Publishing notice to creditors in the foreign jurisdiction (most states require this)
- Filing an inventory of the property located in that state
- Ultimately obtaining a court order authorizing the property transfer or sale
Some states have streamlined procedures for foreign executors or small estates. Others do not. Texas residents dealing with Florida ancillary probate often find a relatively efficient process; those dealing with Louisiana — a civil law jurisdiction with inheritance rules derived from the Napoleonic Code — may encounter a fundamentally different and more complex system.
In every case, the ancillary proceeding requires an attorney licensed in the foreign state. Your Texas estate planning attorney may have referral relationships, but cannot appear in New Mexico or Colorado courts. You are, in effect, hiring two legal teams and running two proceedings simultaneously.
The additional cost is real. Expect anywhere from $3,000 to $15,000 per state for straightforward ancillary probate, with higher costs for title complications or contested matters. The timeline often mirrors or exceeds the primary Texas probate — six to twelve months of additional administration, starting from scratch in the foreign state.
And if you own real property in three states? You are running three probates.
Three Ways to Avoid the Problem Entirely
Ancillary probate is almost entirely preventable with the right estate planning executed while you are alive. The goal is to ensure that no real property passes through the probate court of any state — not Texas, not New Mexico, not anywhere.
1. A Properly Funded Revocable Living Trust
A revocable living trust is the most comprehensive solution. During your lifetime, you transfer title to your real properties — all of them, in every state — from your personal name into the trust. The trust then owns the properties. When you die, the trust doesn't die with you. It continues through the successor trustee named in the document, who can transfer or sell the New Mexico cabin, the Colorado condo, and the Texas house without opening probate in any state.
This works because trusts operate entirely outside the probate system. The critical caveat — and it is a common one — is that the trust must actually hold the property. A trust that exists on paper but was never funded (meaning the deed to the vacation cabin still reads "Sandra Kimball" rather than "The Kimball Family Living Trust") provides no protection at all. For a detailed look at how often this mistake occurs, see our earlier article on the unfunded trust trap.
2. Transfer on Death Deeds
Many states — including Texas, Colorado, New Mexico, and more than half of all U.S. states — allow property owners to record a Transfer on Death deed (sometimes called a beneficiary deed). This document designates one or more beneficiaries who receive the property automatically at death, without probate and without a trust.
TOD deeds are simpler and cheaper to establish than a full trust. Their limitations: they work only in states that recognize them (Louisiana and Florida, notably, do not), they require updating when circumstances change, and they provide no management mechanism if you become incapacitated before death. For a single out-of-state property in a cooperative state, a TOD deed can be an elegant and cost-effective solution.
3. LLC Ownership
Some families hold vacation property through a single-member or family LLC. The reason is structural: an LLC membership interest is legally classified as personal property — a financial asset — not real property. It can be distributed through a Texas will, transferred to a trust, or passed to heirs without triggering the lex situs rule that creates ancillary probate. This approach can also provide liability protection: a guest injured at a vacation cabin may sue the LLC without reaching the owners' personal assets.
LLC ownership adds annual compliance costs (franchise taxes, registered agent fees in the foreign state) and can complicate mortgage financing on the property. It tends to make the most sense for higher-value properties or families with multiple out-of-state holdings who also want the liability protection it provides.
The Conversation Most Estate Planning Attorneys Skip
In the documents Rachel eventually reviewed, her mother's 2019 Texas will was well-drafted: right executor, correct distributions, clear intent throughout. The Taos cabin was even specifically mentioned by name and description. But the attorney who prepared the document had not pressed Sandra on out-of-state ownership as a funding problem. The cabin was documented in the will — and never titled into a trust or covered by a New Mexico TOD deed.
"My mother's attorney wasn't negligent," Rachel said. "He just assumed that naming the cabin in the will was enough. And nobody pushed back."
That gap — between what a will says and what probate law allows — is the precise gap that creates ancillary probate. It doesn't close itself. It doesn't become visible until your executor is trying to transfer a property and discovers they need a foreign attorney, a foreign court, and eleven months they weren't prepared to spend.
The questions that close the gap are simple and should be asked at every estate planning meeting: Do you own real property outside Texas? Is any property held jointly with someone else? Is that joint ownership structured as a right of survivorship? If the attorney doesn't ask, the client needs to raise it.
What to Do If You're Already in the Middle of It
If a family member has already died owning out-of-state property and you're now facing the ancillary probate question, the situation is manageable — it's just more expensive than it would have been with advance planning. The steps are the same: admit the Texas will, obtain letters testamentary in Texas, then work with a foreign-state attorney to open the ancillary proceeding.
Some relief is available depending on the property's value and the foreign state's laws. Several states have affidavit-based procedures for small estates that avoid full probate. Other states allow the Texas executor to act with limited ancillary procedure. An experienced probate attorney who handles out-of-state coordination can identify the most efficient path for the specific state involved.
For broader context on Texas probate procedure, see our guides on independent vs. dependent administration in Texas, the Texas muniment of title shortcut, and Texas affidavits of heirship for intestate property.
If You Own Property in More Than One State, the Time to Act Is Now
At WG Law, Taylor Willingham has guided more than 10,000 Texas families through estate planning — including clients whose asset profiles span multiple states. A proper intake review identifies every piece of real property you own, confirms how title is currently held, and builds the right structure to prevent multi-state probate before it becomes your family's problem.
If you are already navigating an estate that involves out-of-state property, our probate attorneys Therese Gutierrez and Philip Burgess can review the situation and identify the most efficient path through the ancillary process. Call 214-250-4407 or request a consultation online. WG Law serves clients throughout McKinney, Southlake, Plano, Frisco, Allen, and the greater Dallas–Fort Worth Metroplex.
This article provides general legal information about Texas estate planning and ancillary probate. It is not legal advice. Probate laws vary by state and individual circumstances differ. For guidance specific to your situation, consult a licensed Texas estate planning attorney.