Commentary on HB 1176

1999 Legislation:

Commentary on HB 1176 -- Original Signature
Of Clerk and Judge Required
To Probate Foreign Will

HB 1176, by Rep. Junell, is one of those situations where I didn't know the statute was broken. Then again, it may be one of those situations where, if it isn't broken, don't fix it.

Section 95(c) of the Texas Probate Code sets forth the requirements for filing proof of the probate of a foreign will in the decedent's domiciliary jurisdiction. Following is the current statute, with the changes proposed by HB 1176 highlighted:

(c) Copy of Will and Proceedings to be Filed. A copy of the will and of the judgment, order, or decree by which it was admitted to probate or otherwise established, attested by and with the original signature of the clerk of the court or of [by] such other official as has custody of such will or is in charge of probate records, with the seal of the court affixed, if there is a seal, together with a certificate containing the original signature of the judge or presiding magistrate of such court that the said attestation is in due form, shall be filed with the application.

This is the familiar "exemplified copy" requirement. Exemplified copies are more than certified copies -- the clerk certifies that the copies are genuine and the judge certifies that the clerk has the authority to say they are genuine.

Section 95 permits the exemplified copies to be filed in the probate records of the Texas court without the need for a court order. (See Section 95(d)(1)). Section 96 dovetails off of Section 95(c), permitting exemplified copies meeting the requirements of Section 95(c) to be filed directly in the real property records of counties in which the decedent owned real property. Section 96 is one of those wonderful Texas probate provisions which makes it possible for us to brag about how simple probate is in Texas. We've got none of that ancillary probate nonsense like Oklahoma or California where administering the out-of-state property costs more than the entire Texas administration. You just get copies of the probate proceedings in the state where the decedent lived and record them in the real property records.

The proposed change to Section 95(c) affects not only Section 95 proceedings, but filings in the real property records under Section 96 as well.

According to one of Rep. Junell's legislative aides, the impetus for HB 1176 is one of Rep. Junell's constituent county clerks. The clerk was presented with a computer-generated certificate from a California court containing no original signature. The clerk could not readily determine its authenticity, but nothing in the statute appeared to require an original signature on the certificate. Thus, the clerk contacted Rep. Junell to fix the statute.

I've always thought that Section 95(c) is a trap for the unwary. Most folks are familiar with the idea of certified copies, but not exemplified copies. My guess is that, in many cases, persons doing self-help ancillary probate get certified, not exemplified, copies and file them in the real property records, thinking that they have satisfied the statute. How many times have you had to explain to a client that they need to get the double-certificated copies required by the statute, not plain old certified copies? Also, even when you and your client are clear about what is required, it is a hit-and-miss proposition as to what the domiciliary state's court will provide.

I sympathize with the clerk and his or her desire to be sure that the material presented for filing is genuine. However, I worry that it may be difficult or impossible to get courts in other states to provide a different form of exemplification than they are used to providing. If California courts use computer-generated certificates, how easy is it going to be to get them to alter their practice to meet what they may perceive is some obscure Texas requirement?

Rep. Junell's aide was open to suggestions on how better to solve the clerk's problem. Why not drop the requirement that the judge certify that the attestation is in due form and simply require certified copies? I guess some clerks may not authenticate certified copies with an original signature, but it would be easier to deal with one official -- the clerk -- to get an original signature than to deal with two officials -- the clerk and the judge.

Another consideration is what other states may require. What do UPC states do? If Texas's requirements are identical to or similar to Uniform Probate Code requirements, then problems rarely should occur. On the other hand, if Texas is the only state with a particular requirement, we all will have trouble getting exactly what is required from other states. [02/04/99]