Probate
DOES AN INDEPENDENT EXECUTOR NAMED IN A LAST WILL AND TESTAMENT AND APPOINTED TO ACT IN SUCH CAPACITY BY A COURT AUTOMATICALLY HAVE THE POWER AND AUTHORITY TO SELL REAL PROPERTY OF THE ESTATE?
No. Existing Texas case law states that, absent an express provision in the will that gives the executor the power to sell real property, or in the absence of the necessity of the executor in order to administer the estate (e.g. pay debts), in order to sell real property of the estate the executor must obtain the joinder of all devisees named in the will to receive the real property. Further, necessity to sell real property in order to administer the estate will be assumed only if there is no other property of the estate that can be sold.
Recent amendments to the Texas Estates Code have partially modified existing case law. Now, independent executors and independent administrators automatically have power of sale--but only in certain situations. Also, prior to appointment, distributees of an estate may grant the independent executor or independent administrator power of sale.
Recent amendments to the Texas Estates Code have partially modified existing case law. Now, independent executors and independent administrators automatically have power of sale--but only in certain situations. Also, prior to appointment, distributees of an estate may grant the independent executor or independent administrator power of sale.
CAN A PROBATE COURT WAIVE BOND FOR AN EXECUTOR OR ADMINISTRATOR?
No. Bond premiums can be expensive, so if you insist on preparing your own last will and testament, be sure to expressly waive bond for your personal representative, and any successor. If a will doesn’t waive bond, one will have to be obtained.
How does Texas' Probate system compare to other states?
Texas has the easiest probate system in the entire United States. If a last will and testament properly provides for an independent administration, and one is opened, the probate court has very little control over a personal representative. Therefore, probate costs are significantly less than for the alternative method of probate, a dependent administration. If you trust your personal representative, be sure to provide for an independent administration. And avoid those living trusts.
What happens if i die without a will?
If you do not have a last will and testament, the State of Texas has already prepared one for you. Sections 201.001 and 201.002 of the Texas Estates Code (separate property) and Section 201.003 of the Texas Estates Code (community property) act as your last will and testament if you die intestate (without a will). So if you don’t like what those sections say, get a will. And if you do not want the court choosing your personal representative, get a will. And if you do not want (your heirs) to spend 3 to 10 times the cost of probating your estate, get a will.
Is a handwritten will valid in texas?
If totally in the handwriting of the deceased, and if on a blank piece of paper (letterhead stationary would be okay), a handwritten (holographic) will would be valid. It doesn’t even have to be signed or dated. There could, of course, be proof problems, both of mental capacity and handwriting, and the will might have issues regarding content, but it still would be a valid will. The most prudent course of action would be to have a competent attorney draft your will.
Real Estate
WHAT IS TITLE INSURANCE?
Title insurance is an often misunderstood product. Most individuals do not have an accurate understanding of what title insurance is, what it does, and what it does not do.
Title insurance is an insurance policy. The policy is a contract of indemnity. In it, the insurance company agrees to indemnify the insured (usually a buyer or a lender) against loss under certain contractual provisions. In Texas, the business of title insurance it totally regulated by the Texas Department of Insurance. The title policy contracts are fixed in what they say except for certain property specific matters. Title insurance premiums are also established by the Texas Department of Insurance and must be charged as promulgated.
A title insurance policy is not a guarantee of clear title. This is the most common misunderstanding about title insurance. While the title insurance company hopes the title policy is representative of the true status of title, it sometimes is not. This is due to numerous factors, from human error in searching the title to unknown title problems such as missing heirs or forgeries. The insured must also have suffered a loss for there to be an obligation of the title insurance company to pay damages or cure the title. The title insurance company’s liability is limited to the amount of the policy, and it has several options available in handling a claim.
Title insurance is a valuable product. All institutional lenders require title insurance to insure that a loan made to a borrower or owner is secured by a valid first lien against the involved property. A prudent buyer will always require a title policy be issued in conjunction with his purchase.
Title insurance can also be issued on leases and easements. It can increase in coverage based on construction of additional improvements, and can protect you even after you sell your property. Credits are usually available for a portion of a title premium previously paid if you refinance your mortgage.
Many options exist to protect your investment in your home or other real estate. The Stroup Law Firm is available to assist you with all of your title insurance needs.
Title insurance is an insurance policy. The policy is a contract of indemnity. In it, the insurance company agrees to indemnify the insured (usually a buyer or a lender) against loss under certain contractual provisions. In Texas, the business of title insurance it totally regulated by the Texas Department of Insurance. The title policy contracts are fixed in what they say except for certain property specific matters. Title insurance premiums are also established by the Texas Department of Insurance and must be charged as promulgated.
A title insurance policy is not a guarantee of clear title. This is the most common misunderstanding about title insurance. While the title insurance company hopes the title policy is representative of the true status of title, it sometimes is not. This is due to numerous factors, from human error in searching the title to unknown title problems such as missing heirs or forgeries. The insured must also have suffered a loss for there to be an obligation of the title insurance company to pay damages or cure the title. The title insurance company’s liability is limited to the amount of the policy, and it has several options available in handling a claim.
Title insurance is a valuable product. All institutional lenders require title insurance to insure that a loan made to a borrower or owner is secured by a valid first lien against the involved property. A prudent buyer will always require a title policy be issued in conjunction with his purchase.
Title insurance can also be issued on leases and easements. It can increase in coverage based on construction of additional improvements, and can protect you even after you sell your property. Credits are usually available for a portion of a title premium previously paid if you refinance your mortgage.
Many options exist to protect your investment in your home or other real estate. The Stroup Law Firm is available to assist you with all of your title insurance needs.
DO I OWN THE MINERALS UNDER MY PROPERTY?
“How can I find out if I own the minerals under my property?” This is a frequently asked question, and there is no easy answer.
In Texas, title to the mineral estate passes with the title to the land if the conveyance does not specifically reserve minerals to the seller. However, a review of one’s deed will not answer the question because the seller may not have owned the minerals either. Minerals to a particular piece of property may have been reserved or conveyed to others many years ago.
Reviewing your title insurance policy may not be of any assistance either. In many portions of the state where there has not been a history of energy development, title searches did not worry about mineral reservations. Also, many title searches are done from computerized records that don’t permit a reading of the actual document. Therefore, many mineral reservations (and other matters) are overlooked.
The only sure way to determine if one owns the mineral estate is to have a title search done all the way back to the sovereign, or when the State of Texas patented the land to the original private owner. Even then, in certain circumstance, the State of Texas by statute owns some or all of the mineral estate. Mineral title searches are expensive, sometimes costing hundreds of dollars.
As a practical matter, especially in urban areas, if someone is contacting you about selling or leasing minerals, you probably own them. Most energy companies conduct a minimum level of title search before attempting to lease or buy them from you. Be careful of language in and lease or contract whereby you warrant title to the minerals, because you really do not know what you own.
In Texas, title to the mineral estate passes with the title to the land if the conveyance does not specifically reserve minerals to the seller. However, a review of one’s deed will not answer the question because the seller may not have owned the minerals either. Minerals to a particular piece of property may have been reserved or conveyed to others many years ago.
Reviewing your title insurance policy may not be of any assistance either. In many portions of the state where there has not been a history of energy development, title searches did not worry about mineral reservations. Also, many title searches are done from computerized records that don’t permit a reading of the actual document. Therefore, many mineral reservations (and other matters) are overlooked.
The only sure way to determine if one owns the mineral estate is to have a title search done all the way back to the sovereign, or when the State of Texas patented the land to the original private owner. Even then, in certain circumstance, the State of Texas by statute owns some or all of the mineral estate. Mineral title searches are expensive, sometimes costing hundreds of dollars.
As a practical matter, especially in urban areas, if someone is contacting you about selling or leasing minerals, you probably own them. Most energy companies conduct a minimum level of title search before attempting to lease or buy them from you. Be careful of language in and lease or contract whereby you warrant title to the minerals, because you really do not know what you own.
ARE MINERALS CONSIDERED REAL PROPERTY?
In Texas, minerals are considered real property. In fact, the mineral estate is considered the dominant estate and the surface estate is known as the servient estate. This legal reality reflects our state’s long history of mineral development.
One result of this fact is that whenever real property is conveyed, all minerals owned by the grantor pass to the grantee unless specifically reserved in the deed.
One result of this fact is that whenever real property is conveyed, all minerals owned by the grantor pass to the grantee unless specifically reserved in the deed.
DOES A QUITCLAIM COVEY REAL PROPERTY?
No. Instead, the quitclaim transfers something less. It only transfers the grantor's title, if any, to the real property, and not the real property itself. The distinction is subtle, but important in certain situations.
The grantee under quitclaim cannot be an "innocent purchaser" and therefore defeat certain title claims. Also, a title holder under a quitclaim cannot obtain any after acquired title of the seller. A quitclaim is not a deed within the meaning of the five year statute of limitations. Certain warranties implied under Texas law in a deed from a grantor to a grantee do not exist when a quitclaim is used. Finally, when receiving a quitclaim, a guarentee cannot, upon later failure of title, recover any money paid the seller.
The rule of thumb is, when a grantor has title, give a deed. When a grantor does not have title but the record shows that he does (or might), give a quitclaim. An example would be where a man and woman were married, bought real property, and later divorced with the divorce decree awarding the real property to the woman. If the divorce decree is not recorded in the deed records, the record title would still reflect that the man and woman both owned the property when, in actuality, the divorce decree divested the man of title and awarded it to the woman. In this case, a quitclaim would be appropriate--not to convey title but only to put third parties on notice that the man no longer owned an interest in the real property. If the divorce decree did not divest the man of title, then a deed would be appropriate and a quitclaim should not be executed.
For these reasons, title companies are extremely hesitant to insure land titles where a quitclaim has been improperly used instead of a deed.
The grantee under quitclaim cannot be an "innocent purchaser" and therefore defeat certain title claims. Also, a title holder under a quitclaim cannot obtain any after acquired title of the seller. A quitclaim is not a deed within the meaning of the five year statute of limitations. Certain warranties implied under Texas law in a deed from a grantor to a grantee do not exist when a quitclaim is used. Finally, when receiving a quitclaim, a guarentee cannot, upon later failure of title, recover any money paid the seller.
The rule of thumb is, when a grantor has title, give a deed. When a grantor does not have title but the record shows that he does (or might), give a quitclaim. An example would be where a man and woman were married, bought real property, and later divorced with the divorce decree awarding the real property to the woman. If the divorce decree is not recorded in the deed records, the record title would still reflect that the man and woman both owned the property when, in actuality, the divorce decree divested the man of title and awarded it to the woman. In this case, a quitclaim would be appropriate--not to convey title but only to put third parties on notice that the man no longer owned an interest in the real property. If the divorce decree did not divest the man of title, then a deed would be appropriate and a quitclaim should not be executed.
For these reasons, title companies are extremely hesitant to insure land titles where a quitclaim has been improperly used instead of a deed.
CAN I TRANSFER TITLE TO MY HOMESTEAD AND STILL CLAIM HOMESTEAD AND OVER 65 PROPERTY TAX EXEMPTIONS?
Yes. More accurately, you can convey a remainder interest in your property (ownership of the property after you die), retain the property for your lifetime (a life estate), and not have to be concerned about any estate or probate proceedings being done after your death. This can be a valuable estate planning tool if your estate otherwise would not need to be probated.
CAN A TITLE COMPANY (ACTING THROUGH ITS EMPLOYEES) PREPARE A LEGAL DOCUMENT?
No. In Texas, only licensed attorneys can prepare legal documents for others. A title company may appear to be preparing legal documents, but it is (should be) really an employee of a licensed attorney. A charge for such document preparation should appear on your closing statement, payable to the lawyer of law firm that rendered the services.
IS a policy of Title insurance a GUARANTEE of good title?
One would hope so, but that is not always the case. A title policy is a contract of indemnity between the insurance company and its insured. In the event of loss by the insured, the insurance company is obligated to indemnify its insured according to and subject to the terms and conditions of the policy. While a title insurance company certainly hopes that its policy accurately reflects the status of title at the time it was issued (title companies do not like claims--just like any insurance company), human error, forgeries, and unknown circumstances can mean title sometimes is not what was insured.
Questions concerning foreclosure
This section deals with non-judicial foreclosures of mortgages. In Texas, a mortgage is called a deed of trust. The Stroup Law Firm represents lenders in the foreclosure process.
Except for home equity loans, Texas law allows a lender to foreclose its lien on real estate without having to go to court--provided the deed of trust allows it (which they all do, of course). The Texas Property Code also contains provisions regarding non-judicial foreclosures.
Generally, a debtor must be given notice of default under a loan, and a reasonable time period within which to cure that default. If the property secured by the deed of trust is the debtor’s residence, the time period must be at least 20 days unless the deed of trust provides for a longer notice period. If the default is cured within the stated time period, then “no harm, no foul.” If the default is not cured within the stated time period, the lender may then accelerate the entire debt and proceed to post the property for sale at a future public auction. The debtor must be sent notice of this acceleration and posting, which must not be less than 21 days prior to the scheduled sale date. Sales are generally held on the first Tuesday of each month at the place designated by the Commissioner’s Court of the county in which the sale is to be held. Most sales are at or near the county courthouse.
A foreclosure sale is a public auction held by the trustee named in the deed of trust, or by a substitute trustee appointed by the noteholder. Sales are for cash only. The noteholder may enter a credit bid up to the amount owed it. Most sales result in the property being sold to the noteholder. In sales under a deed of trust lien, there is no right of redemption in Texas for a debtor to reacquire the property.
The Texas Property Code governs the length of notice that must be given a debtor or a tenant of the debtor who remains in the property after the sale. The federal law entitled Protecting Tenants at Foreclosure Act of 2009 required a minimum 90 day notice to vacate be given to certain tenants after the foreclosure of a federally related mortgage. This law has expired.
Except for home equity loans, Texas law allows a lender to foreclose its lien on real estate without having to go to court--provided the deed of trust allows it (which they all do, of course). The Texas Property Code also contains provisions regarding non-judicial foreclosures.
Generally, a debtor must be given notice of default under a loan, and a reasonable time period within which to cure that default. If the property secured by the deed of trust is the debtor’s residence, the time period must be at least 20 days unless the deed of trust provides for a longer notice period. If the default is cured within the stated time period, then “no harm, no foul.” If the default is not cured within the stated time period, the lender may then accelerate the entire debt and proceed to post the property for sale at a future public auction. The debtor must be sent notice of this acceleration and posting, which must not be less than 21 days prior to the scheduled sale date. Sales are generally held on the first Tuesday of each month at the place designated by the Commissioner’s Court of the county in which the sale is to be held. Most sales are at or near the county courthouse.
A foreclosure sale is a public auction held by the trustee named in the deed of trust, or by a substitute trustee appointed by the noteholder. Sales are for cash only. The noteholder may enter a credit bid up to the amount owed it. Most sales result in the property being sold to the noteholder. In sales under a deed of trust lien, there is no right of redemption in Texas for a debtor to reacquire the property.
The Texas Property Code governs the length of notice that must be given a debtor or a tenant of the debtor who remains in the property after the sale. The federal law entitled Protecting Tenants at Foreclosure Act of 2009 required a minimum 90 day notice to vacate be given to certain tenants after the foreclosure of a federally related mortgage. This law has expired.
QUESTIONS CONCERNING SELLER FINANCING
Seller financing is as old as real estate market itself. Often a seller desires the higher interest rates obtained from such an arrangement when compared with other types of investments, or want to spread out a tax liability. Many purchasers cannot qualify for a traditional mortgage loan, or do not want to pay the high cost of obtaining one. Some properties are not suitable as sufficient collateral for the type and amount of a loan desired from a traditional lender. Seller financing can be a solution for these scenarios and more.
Many individuals and companies also engage in the business of investing in real estate wherein properties are bought, in some instances improved or repaired, and then sold to others for occupancy, rental, or further investment.
In seller financing, often referred to as owner financing, the same core legal documents are executed as used in traditional financing: a deed from the seller to the purchaser, and a promissory note and a deed of trust from the purchaser to the seller. If the purchaser defaults under the terms of the loan, the seller can foreclose under the deed of trust in the same way as any traditional lender could.
However, seller financing has been severely restricted by the passage in of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008. This federal law, whether or not entirely constitutional, required all states to adopt laws licensing anyone who directly engages in the business of originating loans secured by residential real property. The State of Texas then passed the Texas Secure and Fair Enforcement for Mortgage Licensing Act of 2009, which for all intents and purposes, requires anyone be licensed who makes a loan secured by residential real estate. The law is laudable in its intent to regulate mortgage brokers but has included everyone who desires to make such a loans, even, for example, one who may only make one loan during her lifetime--that of her own residence after she moves into a new home.
The Stroup Law Firm has closed hundreds of seller financed transactions, both residential and commercial, and can assist you in complying with current law in achieving your plans.
Many individuals and companies also engage in the business of investing in real estate wherein properties are bought, in some instances improved or repaired, and then sold to others for occupancy, rental, or further investment.
In seller financing, often referred to as owner financing, the same core legal documents are executed as used in traditional financing: a deed from the seller to the purchaser, and a promissory note and a deed of trust from the purchaser to the seller. If the purchaser defaults under the terms of the loan, the seller can foreclose under the deed of trust in the same way as any traditional lender could.
However, seller financing has been severely restricted by the passage in of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008. This federal law, whether or not entirely constitutional, required all states to adopt laws licensing anyone who directly engages in the business of originating loans secured by residential real property. The State of Texas then passed the Texas Secure and Fair Enforcement for Mortgage Licensing Act of 2009, which for all intents and purposes, requires anyone be licensed who makes a loan secured by residential real estate. The law is laudable in its intent to regulate mortgage brokers but has included everyone who desires to make such a loans, even, for example, one who may only make one loan during her lifetime--that of her own residence after she moves into a new home.
The Stroup Law Firm has closed hundreds of seller financed transactions, both residential and commercial, and can assist you in complying with current law in achieving your plans.
Useful Links
Texas Property Code
Texas Real Estate Commission
Alamo Title Company
Fidelity National Financial
Texas Civil Practice and Remedies Code
Business Organization Code
Texas Secretary of State
Texas Estates Code
Texas Department of State Health Services
Texas Real Estate Commission
Alamo Title Company
Fidelity National Financial
Texas Civil Practice and Remedies Code
Business Organization Code
Texas Secretary of State
Texas Estates Code
Texas Department of State Health Services
Disclosures
All information on this website is intended to be informational in nature. No legal advice is intended and should not be taken as such.
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This firm does not guarantee or endorse any third party material contained herein or any outside material accessed by links contained herein.
This website is not an advertisement for either The Stroup Law Firm nor any other person or entity mentioned herein or linked hereto.
No representation is made as to whether the information contained on this website is complete or current. Exceptions exist to every possible situation. Do not act upon any information contained herein or linked hereto without first seeking competent legal advice specific to your situation.
Nothing contained herein is intended to create an attorney-client relationship. No attorney-client relationship shall be created or inferred by sending us electronic mail. This website and any electronic mail sent to us from this website email link is not secure. If you are not already a client of this firm, any electronic mail sent from this website, just like any other form of communication, is not privileged and may have to be disclosed to third parties.
This firm does not guarantee or endorse any third party material contained herein or any outside material accessed by links contained herein.
This website is not an advertisement for either The Stroup Law Firm nor any other person or entity mentioned herein or linked hereto.
© 2010-24 Robert C. Stroup, Attorney at Law
2501 Parkview Drive, Suite 210, Fort Worth, Texas 76102
2501 Parkview Drive, Suite 210, Fort Worth, Texas 76102