Replies to This Discussion

Permalink Reply by Duncan McGehee on January 24, 2009 at 4:42

There are a bunch of scenarios. If the land was inherited did the deceased have a will (testate) or no will (intestate). Texas has specific examples for intestate successions.

That said, here's how it works, generally: If *A* dies with a will, *A* will leave his interest to his wife or husband. The deceased can leave the property to his or her children. Remember the wife and husband own 1/2 each if the property was purchased during their marriage. Separate property is different, unless it is homestead.

If there is no will, then the deceased's interest (1/2 FOR EXAMPLE) is passed according to Texas Intestate Succession rules. Who gets what depends on the number of heirs and whether they are direct heirs of the deceased or indirect heirs of the deceased.

See http://www.professorbeyer.com/Articles/Intestacy_Texas_Basics.htm
and
http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf

Say, you have two siblings and your father dies without a will. Your mother retains her 1/2 interest and the three siblings get 1/3 of your father's 1/2 interest. Therefore you would have a 1/6 interest as would your siblings and your mother would have 1/2 interest. This is all an undivided interest, since you share an interest in the same property with your mother and siblings.

As your siblings die or you die then your 1/6 interest is divided between your heirs. Assume your mother dies then you could have another 1/6 interest bringing your total to 1/3. As people die the interest becomes more and more diluted depending on the number of heirs.

When title is done on a property, I do a flow chart of all the transactions involving the transfer of the property. This contains Deeds, Mineral Deeds and Probates or Successions of record. In cases of transfers not of record, such as Probates or Successions an affidavit of heirship is pretty much required to determine who inherits and what interest they inherit according to the laws of Probate or Succession for the State where the property is located. Once the flow chart is complete with no gaps then each owners various interest are added up to determine what percentage each owns. You can then multiple the interest by the gross acres to determine an acreage figure.

Also, an undivided interest is a shared interest. If a partition occurs then the heirs split the property and each owns his or her particular property acquired by the partition. This land is now no longer undivided. Each owns 100% until they die and their heirs inherit at which point it becomes an undivided piece of property shared by all the heirs.

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Permalink Reply by waltcop on January 24, 2009 at 15:48

Those are two very interesting websites, thanks for sharing. Do you or anyone else know if there is a website like that for Louisiana residents or, for that matter, Texas residents with Louisiana property (which is my case).

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Permalink Reply by Tonetbabe on January 24, 2009 at 12:28

Thanks for responding and giving me so much important information.

I have other questions that maybe you can assist me with if you don't mind.

Question: My grandmother has one child a son which is my dad, my grandmother has a will and has been deceased for some time now. However, the will has never been probated. There is a will as well as a Quit Claim Deed from my Grandmother to her only son which is my dad.

My dad did not have his (mother) my (grandmother) Will probated but he received with out any problems all the mineral and oil rights SSSS in his name while my grandmother was living and after her death. So how is this possible????

Question: Is it mandatory to have a Will probated? What can an individual do when the executive does not want to participate.

For example, My Dad is deceased, when I was younger my dad gave me the original as well as duplicate of his will, and before his death he completed a Quit Claim Deed from himself to me, it has been filed and recorded. however, I still have the will from my dad and no it has not been probated.

Lastly, would a title search put closure to any doubt of who the actual heirs are?

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Permalink Reply by intrepid on January 24, 2009 at 15:21

You really need a lawyer. Not to take anything away from the previous response or any other that you may get, but you really need a lawyer.

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Permalink Reply by Tonetbabe on January 24, 2009 at 20:16

First,Thank you for responding back, believe it or not there is already an attorney involved and I'm really concerned it appears as though this particular attorney does not have a clue as to what to make of the situation.

Secondly,I have been given the task of finding the remaining heirs, so far I have located 3, and each have completed an heirship affidavit do to their parents not leaving a will I forwarded the documents to the attorney. Myself ,on the other hand I have my dads will and a quit claim deed.

Third, I have come to the conclusion that it would be beneficial if the attorney were to bring a partition suit and have the land divided which I would really be pleased because I'm under the impression by having it partitioned each party would be responsible for paying their own taxes. For the last 5yrs. I have been paying the taxes on 82.01acres of land that has undivided interest in east Texas.

Lastly, I have been receiving the tax bill in my name and it has continued to be paid on time. Just wondering if other wills were not probated what is the big fuss that the attorney has about probating the will after all I'm the only heir to my dads undivided interest and his share of some acres in East Texas.

What is the time limit that an individual has to probate a will?
In this situation is it necessary to probate the will?

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Permalink Reply by Duncan McGehee on January 25, 2009 at 5:17

See http://tlo2.tlc.state.tx.us/statutes/pb.toc.htm Texas Probate Laws

Section 74 states you have 4 years TIME TO FILE APPLICATION FOR LETTERS TESTAMENTARY OR ADMINISTRATION. I forget what happens after 4 years, but think an heirship Affidavit is one remedy.

I try anyway I can to avoid using a Quit Claim deed as the Source Deed for the transfer of title, but sometimes that's the only tie-in to be found. If the Executor can not or will not participate; I believe a Substitute Executor or Executrix can be appointed. After the 4 year time line, I'm unsure how this would be handled. The Probate Court may or may not recognize the Will due due not filing an Application within the 4 year time period. This is above my pay grade as it is usually handled by an attorney. An heirship affidavit should surfice, but need to be made by a disinterested party. Someone outside the family who knew the family well and who can tell to the best of their ability who the decendents were. It's not always the easiest thing to find a disinterested party and I have seen family members make the statement of who the heirs were.

In any case I would talk to the Probate Department for the County where the property is located and see if you can still probate your father's will. If they allow it you should be able to be appointed Executor/Executrix. This is just my thoughts as I'm not an attorney and I'm unsure of all the nuances of Texas Probate Law. If not then I believe you can file the will of record and at least have a better semblance of a claim to the property. As long as there are no other heirs to your father then yourself, you should inherit all his interest in the property.

Normally, if an Oil & Gas Company leases you they will do a drillsite opinion - if your property is chosen to drill the well upon. These issues will be included in the Title Opinion as requirements to cure any cloud or defects to the property title and a landman will be assigned the task of fulfilling the title requirements.

If your property is not the drillsite, but pooled with land which is the drillsite and Oil or Gas is found, the company should get Title Opinions on each tract. Then it is basically the same scenario as above.

If no Oil or Gas is found then nothing further will occur to clear any defects or clouds on the title to the property.

Also, adverse possession is another way to assure yourself of title to the property. I do not believe you can adversely possess property against family members.

See http://law.justia.com/texas/codes/cp/002.00.000016.00.html See Section 16-24...33

A title search is most helpful, if for no other purpose than showing any clouds or defects to title to the property.

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Permalink Reply by Jay Murrell on March 2, 2009 at 11:55

Hi Duncan,

How you doing?

Jay

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Permalink Reply by Stevew on January 24, 2009 at 20:43

Tonetbabe,

I feel your pain. I also inherited interest in property that had not been probated in three generations. I can prove I own 3/4 of it, but there are a cloud of heirs from many years ago. I have paid the taxes on this land for almost thirty years. I am sure they appreciate that.

Get a second lawyer. I had to. Be prepaired to pay a bunch of costs out of your pocket searching for relatives you have never heard of.

One thing, if you want to sell the property quickly, you can simply sell your interest with a Quit Claim deed - which is usually bought at a deep discount since the new purchaser will also have to go through court to get a clear title. I did not do this, but one lawyer suggested it.

You have no idea how many times I cursed these long dead relatives for not doing the simple act of probating the wills when people died. I imagine you have felt the same way :)

best wishes,

Logger

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Permalink Reply by Tonetbabe on January 25, 2009 at 11:10

I would like to extend a hearty Thank you for the information that each provided. I plan to see if there will be any type of type of production if so than the interested parties can figure out each persons title etc... I have documents where that has occurred with past generations.

So would it be out the normal to split the taxes and send the other parties a request for reimbursement, that is my intentions fair or not" Once again Thanks Guys and keep up the good work ."

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Permalink Reply by Duncan McGehee on January 25, 2009 at 11:43

So would it be out the normal to split the taxes and send the other parties a request for reimbursement, that is my intentions fair or not" Once again Thanks Guys and keep up the good work ."

It is not out of the normal. Undivided interest owners are responsible for their share of the taxes. Whether or not you get reimbursed depends on the other owners. A partition can get pretty acromonious sometimes, so keep that in mind also.

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Permalink Reply by Bobi Carr ("parker") on March 2, 2009 at 10:45

Ibuyundivideinterests,

How about becoming a sponsor to the site?

That would give you some credibility.

Why would I want to contact someone who isn't professional enough, or at least has established their credibility elsewhere.

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Permalink Reply by Cathaus on March 2, 2009 at 11:17

It is a great site. You sound like a nice guy. I am sure that Haynesville will be happy to have you as a sponsor.

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