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2007 Texas Land Title Institute – Non Traditional Probate Methods and Issues Arising From a Death in the Chain of Title

NON TRADITIONAL PROBATE METHODS AND ISSUES ARISING FROM A DEATH

IN THE CHAIN OF TITLE

Texas Land Title Institute December, 2007

Bruce Goldston Vice President and Underwriting Counsel

Alamo Title Insurance / Fidelity National Title Insurance Company 10010 San Pedro, Suite 630 San Antonio, Texas 78216

(800) 292-5320 (210) 377-2926 FAX

BRUCE L. GOLDSTON

Vice President and Underwriting Counsel Fidelity National Title Insurance Company

Alamo Title Insurance 10010 San Pedro, Suite 630 San Antonio, Texas 78216

(800) 292-5320 / (210) 377-0881 (210) 377-2926 (FAX)

Education:

Austin College St. Mary’s University School of Law BA 1972 JD 1975

Employment experience:

Mr. Goldston was in private practice for 15 years, where he concentrated in commercial matters. He subsequently handled commercial and real estate litigation for the Federal Deposit Insurance Corporation for 3 years. In 1996 he joined Alamo Title Insurance as Claims Counsel where he was responsible for the administration and resolution of all claims which arose from policies issued by Alamo in Texas and New Mexico. Following Alamo’s merger with Fidelity National Title Insurance Company in July, 1998, he became Underwriting Counsel. The Regional Underwriting Office in San Antonio is responsible for providing underwriting and educational services for over 300 independent agents, direct operations, and fee attorneys in Texas, New Mexico and Oklahoma.

Memberships:

State Bar of Texas San Antonio Bar Association

Training/Speaking Experience:

Mr. Goldston has spoken on more than two hundred occasions in Texas and New Mexico on title insurance underwriting, claims and legal issues. Some of the topics he has covered include:

Introduction to Title Insurance Manufactured Housing Avoiding and Administering Claims Examiners’ Training Current Underwriting Issues Insuring Around Home Equity Lending Insuring Construction Transactions Legislative Updates Probate and Intestate Succession Bankruptcy Ethics for Title Company Employees Reverse Mortgages Voluntary and Involuntary Liens Taxes and Title Insurance Escrow and Indemnity Agreements Marital Rights Business Entities Foreclosures Homesteads Minerals

2007 Texas Land Title Institute – Non Traditional Probate Methods and Issues Arising From A Death in the Chain of Title

Table of Contents

I. COLLECTION OF SMALL ESTATES UPON AFFIDAVIT 1 A. Collection of Small Estates Upon Affidavit 1 II. APPLICATION FOR ORDER OF NO ADMINISTRATION 2 A. Application for Order of No Administration 2 B. Upon the filing of an Application 3 C. The order that no administration be had 3 D. No BFP protection 3 E. The section establishes an expeditious way to vest the family Allowance 3 III. COMMUNITY ADMINISTRATION 3 A. Effective September 1, 2007 HB 1710 3 B. Use of the formal community administration procedure became Increasingly rare 3 C. When no one has qualified as personal representative 3 1. Usual underwriter practice 4 a. Rate and term refinances 4 2. Naming the grantor in a sale 4 3. Does not change the rules regarding home equity loans 4 IV. PROCEEDINGS TO DECLARE HEIRSHIP 4 A. Proceedings to Declare Heirship 4 B. What is the procedure? 4 C. Order for genetic testing authorized 5 1. Court must order if requested 5 2. Refusal to submit is punishable by contempt 5 D. Judgment 6 E. Effect of Judgment 6 F. Bona fide purchasers 6 V. PROBATING A WILL AS A MUNIMENT OF TITLE 6 A. A will may be probated for two different reasons 6 B. Letters testamentary not issued if will not probated in 4 years 7 C. A will can be probated as a muniment more than 4 years after death 7 D. Probate of Wills as Muniments of Title 7 VI. PROBATING A WILL AS A MUNIMENT OF TITLE; NO 8 EXECUTOR . . . BUT MAYBE A TRUSTEE? A. When a will is probated as a muniment, there is no executor 8 B. Probating as a muniment vests title in the beneficiaries 8


VII. IS A WILL VALID IF NOT SIGNED BY THE TESTATOR? 8 A. Who may make a will 8 B. Every will shall be signed by the testator or by another person 8 C. Signing document for individual with disability 8 1. Is a will a document presented for notarization? 9 D. Self proving affidavits 9 VIII. PASSAGE OF TITLE BY NON TESTAMENTARY TRANSFER 9 A. Joint tenancies 9 B. Community property 9 1. An agreement between spouses 10 2. Is merely taking title as “JTWROS” sufficient 10 3. Court may validate the agreement 10 a. Effect of order 10 4. Protection of third parties 10 IX. DOES THE RULE OF AFTER ACQUIRED PROPERTY APPLY 11 WHEN PROPERTY IS ACQUIRED THROUGH A DECEDENT? A. A conveys to X 11 B. Gulf Oil v. Shell Oil 11 X. DEATH AND THE POWER OF ATTORNEY 12 A. Knowledge of death 12 B. Affidavit of lack of knowledge 12 XI. WHEN A DEED IS RECORDED AFTER THE GRANTOR’S 12 DEATH A. Conveyance of real property must be in writing 12 B. A conveyance is effective upon delivery 12 C. Two elements must be established 13 D. Delivery of a deed is the final act 13 E. Delivery of a deed to a third person 13 F. If a grantor delivers a deed to a third person 13 XII. CONVEYANCE OF FUTURE INTERESTS 14 A. A person may make an inter vivos conveyance 14 B. Terrell v. Graham 14 XIII. CHANGES IN SECTION 69 OF THE PROBATE CODE 14 A. Partial text of statute 14 B. Section 69 will not cause title to vest in someone who is a relative of the former spouse unless that person is also a relative of the testator 14 1. Estate of Nash 14 2. Testator can make a will to negate Sect. 69 14


XIV. THE POWERS OF A GUARDIAN THAT EXTEND BEYOND THE 14 DEATH OF THE WARD A. Facts 15 B. Easterline v. Bean 15 1. Probate Code Sect. 746 15 XV. BANKRUPTCY AND DEATH 15 A. Court will probably not dismiss a Ch. 7 case 15 B. Bankruptcy Rule 1016 15 C. In Re: Lucio 16 D. What about difference between exemptions? 16 1. State and federal exemptions 16 2. Limitations on homestead exemptions 16 XVI. WHEN DOES DEVISED OR INHERITED PROPERTY BECOME 16 PART OF A DEBTOR’S ESTATE IN BANKRUPTCY? A. Property interests vest in a devisee upon death 16 1. Property is received as of date of death 16 2. Decedent dies before bankruptcy is filed 16 3. When decedent dies after bankruptcy is filed 16 B. Disclaimers and bankruptcy 16 1. Disclaimer executed before bankruptcy 16 2. Disclaimer executed after bankruptcy 17

2007 Texas Land Title Institute – Non Traditional Probate Methods and Issues Arising From a Death in the Chain of Title 1

NON TRADITIONAL PROBATE METHODS AND

ISSUES ARISING FROM A DEATH IN THE CHAIN OF TITLE The purpose of this paper is to provide an overview of non traditional probate procedures and some of the issues which title company employees and attorneys may encounter when there is a death in the chain of title. I. COLLECTION OF SMALL ESTATES UPON AFFIDAVIT – SECTION 137 A. COLLECTION OF SMALL ESTATES UPON AFFIDAVIT (a) The distributees of the estate of a decedent who dies intestate shall be

entitled thereto, to the extent that the assets, exclusive of homestead and exempt property, exceed the known liabilities of said estate, exclusive of liabilities secured by homestead and exempt property, without awaiting the appointment of a personal representative when:

(1) No petition for the appointment of a personal representative is pending or has been granted; and (2) Thirty days have elapsed since the death of the decedent; and (3) The value of the entire assets of the estate, not including homestead and exempt property, does not exceed $50,000; and

(4) There is filed with the clerk of the court having jurisdiction and venue an affidavit sworn to by two disinterested witnesses, by all such distributees that have legal capacity, and, if the facts warrant, by the natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is also a distributee, which affidavit shall be examined by the judge of the court having jurisdiction and venue; and

(5) The affidavit shows the existence of the foregoing conditions and includes a list of all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history facts concerning heirship that show the distributees' rights to receive the money or property of the estate or to have such evidences of money, property, or other rights of the estate as are found to exist transferred to them as heirs or assignees; and

(6) (omitted) (7) (omitted) (b) This section does not affect the disposition of property under the terms of a

will or other testamentary document nor, except as provided by Subsection (c) of this section, does it transfer title to real property.


(c) Title to a decedent's homestead that is the only real property in a decedent's estate may be transferred on an affidavit that meets the requirements of this section. An affidavit that is used to transfer title to a homestead under this section must be recorded in the deed records of a county in which the homestead is located. A bona fide purchaser for value may rely on a recorded affidavit under this section. A bona fide purchaser for value without actual or constructive notice of an heir who is not disclosed in a recorded affidavit under this section acquires title to a homestead free of the interests of the undisclosed heir, but the bona fide purchaser remains subject to any claim a creditor of the decedent has by law. A purchaser has constructive notice of an heir who is not disclosed in a recorded affidavit under this section if an affidavit, judgment of heirship, or title transaction in the chain of title in the deed records identifies the heir of the decedent who is not disclosed in the affidavit as an heir of the decedent. An heir who is not disclosed in a recorded affidavit under this section may recover from an heir who receives consideration from a purchaser in a transfer for value of title to a homestead passing under the affidavit.

(d) If the judge approves the affidavit under this section, the affidavit is to be recorded as an official public record under Chapter 194, Local Government Code.

II. APPLICATION FOR ORDER OF NO ADMINISTRATION -- SECTION 139 A. APPLICATION FOR ORDER OF NO ADMINISTRATION. If the value of

the entire assets of an estate, not including homestead and exempt property, does not exceed the amount to which the surviving spouse and minor children of the decedent are entitled as a family allowance, there may be filed by or on behalf of the surviving spouse or minor children an application in any court of proper venue for administration, or, if an application for the appointment of a personal representative has been filed but not yet granted, then in the court where such application has been filed, requesting the court to make a family allowance and to enter an order that no administration shall be necessary. The application shall state the names of the heirs or devisees, a list of creditors of the estate together with the amounts of the claims so far as the same are known, and a description of all real and personal property belonging to the estate, together with the estimated value thereof according to the best knowledge and information of the applicant, and the liens and encumbrances thereon, with a prayer that the court make a family allowance and that, if the entire assets of the estate, not including homestead and exempt property, are thereby exhausted, the same be set aside to the surviving spouse and minor children, as in the case of other family allowances provided for by this Code.


B. Upon the filing of an application . . . the court may hear the same forthwith without notice, or at such time and upon such notice as the court requires. . . . [i]f the court finds that the facts contained therein are true . . . the court shall make a family allowance and, if the entire assets of the estate, not including homestead and exempt property, are thereby exhausted, shall order that no administration be had of the estate and shall assign to the surviving spouse and minor children the whole of the estate, in the same manner and with the same effect as provided in this Code for the making of family allowances to the surviving spouse and minor children. Texas Probate Code, Sect. 140

C. The order that no administration be had on the estate shall constitute sufficient

legal authority to all persons . . . acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right, belonging to the estate, and to persons purchasing from or otherwise dealing with the estate, for payment or transfer to the persons described in the order as entitled to receive the estate without administration, and the persons so described in the order shall be entitled to enforce their right to such payment or transfer by suit. Texas Probate Code, Sect. 141

D. No BFP protection as is provided by Sect. 137(c). E. The section establishes an expeditious way to vest the family allowance into the hands of the surviving spouse and/or minor children. III. COMMUNITY ADMINISTRATION – SECTION 160 A. Effective September 1, 2007, HB 1710 amended the Probate Code. The

sections of the Texas Probate Code regarding court ordered “Community Administration” have been repealed (sections 161 through 167 and sections 169 through 175). We will no longer have this type of formal administration of a decedent’s estate in Texas. When someone dies intestate and the community property passes to the surviving spouse, the surviving spouse may administer and use the community property without intervention by a court. With minor changes, the Probate Code provisions regarding informal community administration remain in force

B. Use of the formal community administration procedure became increasingly

rare after the amendments to the heirship rules in 1993 which resulted in community property in most situations vesting solely in the surviving spouse. Texas Probate Code, Sect. 45

C. (a) When no one has qualified as executor or administrator of the estate of a

deceased spouse, the surviving spouse, whether the husband or wife, as the surviving partner of the marital partnership, without qualifying as community


administrator as hereinafter provided, has power to sue and be sued for the recovery of community property; to sell, mortgage, lease, and otherwise dispose of community property for the purpose of paying community debts; to collect claims due to the community estate; and has such other powers as shall be necessary to preserve the community property, discharge community obligations, and wind up community affairs

(b) (Omitted) (c) This section does not affect the disposition of the property of the

deceased spouse. Texas Probate Code, Sect. 160 1. Most underwriters probably require proof of heirship and joinder,

where appropriate. a. Rate and term refinances are probably OK 2. If a sale is insured, the surviving spouse should sign “as community

survivor of (Name of Decedent) as necessary to pay community debts in accordance with Sect. 160 of the Texas Probate Code”

3. Does not change the rules regarding home equity loans IV. PROCEEDINGS TO DECLARE HEIRSHIP – SECTION 48 A. PROCEEDINGS TO DECLARE HEIRSHIP

(a) When a person dies intestate owning or entitled to real or personal property in Texas, and there shall have been no administration in this State upon his estate; or when there has been a will probated in this State or elsewhere, or an administration in this State upon the estate of such decedent, and any real or personal property in this State has been omitted from such will or from such administration, or no final disposition thereof has been made in such administration, the court . . . may determine and declare in the manner hereinafter provided who are the heirs and only heirs of such decedent, and their respective shares and interests, under the laws of this State, in the estate of such decedent, and proceedings therefor shall be known as proceedings to declare heirship.

(b) (Omitted) (c) (Court may determine heirs of ward who died intestate) B. What is the procedure? (a) Such proceedings may be instituted . . . by the qualified personal representative of the estate of such decedent, by any person or persons claiming to be a secured creditor or the owner of the whole or a part of the


estate of such decedent, or by the guardian of the estate of a ward, . . . In such a case an application shall be filed in a proper court stating the following information: (1) the name of the decedent and the time and place of death; (2) the names and residences of the decedent's heirs, the relationship of each heir to the decedent, and the true interest of the applicant and each of the heirs in the estate of the decedent; (3) all the material facts and circumstances within the knowledge and information of the applicant that might reasonably tend to show the time or place of death or the names or residences of all heirs, if the time or place of death or the names or residences of all the heirs are not definitely known to the applicant; (4) a statement that all children born to or adopted by the decedent have been listed; (5) a statement that each marriage of the decedent has been listed with the date of the marriage, the name of the spouse, and if the marriage was terminated, the date and place of termination, and other facts to show whether a spouse has had an interest in the property of the decedent; (6) whether the decedent died testate and if so, what disposition has been made of the will; (7) a general description of all the real and personal property belonging to the estate of the decedent; and (8) an explanation for the omission of any of the foregoing information that is omitted from the application. (b) Such application shall be supported by the affidavit of each applicant to the effect that, insofar as is known to such applicant, all the allegations of such application are true in substance and in fact and that no such material fact or circumstance has, within the affiant's knowledge, been omitted from such application. The unknown heirs of such decedent, all persons who are named in the application as heirs of such decedent, and all persons who are, at the date of the filing of the application, shown by the deed records of the county in which any of the real property described in such application is situated to own any share or interest in any such real property, shall be made parties in such proceeding. C. Order for genetic testing authorized. Added by 2007 Legislature. Texas Probate Code, Sect. 53A-53E. 1. Court must order it if requested by a party. Sect. 53A(a). 2. Refusal to submit to testing after being ordered to do so is punishable by contempt. Id.


D. Judgment The judgment of the court in a proceeding to declare heirship shall declare the names and places of residence of the heirs of the decedent, and their respective shares and interests in the real and personal property of such decedent. If the proof is in any respect deficient, the judgment shall so state. Texas Probate Code, Sect. 54. E. Effect of Judgment (a) Such judgment shall be a final judgment, and may be appealed or reviewed within the same time limits and in the same manner as any other judgments in probate matters at the instance of any interested person. If any person who is an heir of the decedent is not served with citation by registered or certified mail, or by personal service, he may at any time within four years from the date of such judgment have the same corrected by bill of review, or upon proof of actual fraud, after the passage of any length of time, and may recover from the heirs named in the judgment, and those claiming under them who are not bona fide purchasers for value, his just share of the property or its value. (b) Although such judgment may later be modified, set aside, or nullified, it shall nevertheless be conclusive in any suit between any heir omitted from the judgment and a bona fide purchaser for value who has purchased real or personal property after entry of the judgment without actual notice of the claim of the omitted heir. Similarly, any person who has delivered funds or property of the decedent to the persons declared to be heirs in the judgment, or has engaged in any other transaction with them, in good faith, after entry of such judgment, shall not be liable therefor to any person. (c) (Omitted) Texas Probate Code, Sect. 55 F. If any person shall purchase real or personal property from the heirs of a decedent more than four years from the date of death of the decedent, for value, in good faith, and without knowledge of the existence of a will, such purchaser shall be held to have good title to the interests which such heir or heirs would have had in the absence of a will, as against the claims of any devisees or legatees under any will which may thereafter be offered for probate. Texas Probate Code, Sect. 73(b)

V. PROBATING A WILL AS A MUNIMENT OF TITLE – SECTION 89A

A. Remember that a will may be probated for 2 different purposes:

to qualify a personal representative and “administer” the estate


solely to prove up title and ownership of estate assets

B. Letters testamentary shall not be issued if the will is admitted to probate

after the lapse of 4 years after the death of the decedent. Texas Probate Code, Sect. 73(a). The 4 year deadline applies to applications to probate a will and appoint a personal representative.

C. A will can be probated as a muniment of title more than 4 years after the

decedent’s death, if the proponent satisfies the court that he was “not in default” for not probating the will earlier. Texas Probate Code, Sect. 73(a), 89C. Texas courts are generally liberal in allowing probate more than 4 years after the decedent’s death if the only purpose of probate is to establish a chain of title.

D. PROBATE OF WILLS AS MUNIMENTS OF TITLE. (a) In each instance where the court is satisfied that a will should be admitted

to probate, and where the court is further satisfied that there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate, or for other reason finds that there is no necessity for administration upon such estate, the court may admit such will to probate as a muniment of title

(b) If a person who is entitled to property under the provisions or the will cannot be ascertained solely by reference to the will or if a question of construction of the will exists, on proper application and notice as provided by Chapter 37, Civil Practice and Remedies Code, the court may hear evidence and include in the order probating the will as a muniment of title a declaratory judgment construing the will or determining those persons who are entitled to receive property under the will and the persons' shares or interests in the estate. The judgment is conclusive in any suit between any person omitted from the judgment and a bona fide purchaser for value who has purchased real or personal property after entry of the judgment without actual notice of the claim of the omitted person to an interest in the estate. Any person who has delivered property of the decedent to a person declared to be entitled to the property under the judgment or has engaged in any other transaction with the person in good faith after entry of the judgment is not liable to any person for actions taken in reliance on the judgment.

(c) The order admitting a will to probate as a muniment of title shall constitute sufficient legal authority to all persons owing any money to the estate of the decedent, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the estate, and to persons purchasing from or otherwise dealing with the estate, for payment or transfer, without liability, to the persons described in such will as entitled to receive the particular asset without


administration. The person or persons entitled to property under the provisions of such wills shall be entitled to deal with and treat the properties to which they are so entitled in the same manner as if the record of title thereof were vested in their names.

(d) (Omitted) VI. PROBATING A WILL AS A MUNIMENT OF TITLE; NO EXECUTOR . . . BUT MAYBE A TRUSTEE ?

A. When a will is probated as a muniment of title only, no executor is appointed and no letters testamentary are issued; no executor is empowered to act.

B. Probating the will as a muniment of title does vest title pursuant to the

provisions of the will. “The person or persons entitled to property under the provisions of such wills shall be entitled to deal with and treat the properties to which they are so entitled in the same manner as if the record title thereof were vested in their names.” Texas Probate Code, Sect. 89C.

1. If a testator sets up a trust and names a trustee in a will which is probated as a muniment of title, the trustee is empowered to act just as if the will had been probated for administration. VII. IS A WILL VALID IF NOT SIGNED BY THE TESTATOR? A. Every person who has attained the age of eighteen years, or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind, shall have the right and power to make a last will and testament, under the rules and limitations prescribed by law. Texas Probate Code, Sect. 57 B. Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator. Texas Probate Code, Sect. 59 C. SIGNING DOCUMENT FOR INDIVIDUAL WITH DISABILITY. (a) A notary may sign the name of an individual who is physically unable to sign or make a mark on a document presented for notarization if directed to


do so by that individual, in the presence of a witness who has no legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document being signed. The notary shall require identification of the witness in the same manner as from an acknowledging person under Section 121.005, Civil Practice and Remedies Code. (b) A notary who signs a document under this section shall write, beneath the signature, the following or a substantially similar sentence: "Signature affixed by notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code." Texas Government Code, Sect. 406.0165 1. Is a Will a “document presented for notarization”? D. Self Proving Affidavits An affidavit in form and content substantially as provided by Subsection (a) of this section is a "self-proving affidavit." . . . A signature on a self- proving affidavit is considered a signature to the will if necessary to prove that the will was signed by the testator or witnesses, or both, but in that case, the will may not be considered a self-proved will. Texas Probate Code, Sect. 59(b) VIII. PASSAGE OF TITLE BY NON TESTAMENTARY TRANSFER A. Section 46 controls if the property is not community property. JOINT TENANCIES (a) If two or more persons hold an interest in property jointly, and one joint owner dies before severance, the interest of the decedent in the joint estate shall not survive to the remaining joint owner or owners but shall pass by will or intestacy from the decedent as if the decedent's interest had been severed. The joint owners may agree in writing, however, that the interest of any joint owner who dies shall survive to the surviving joint owner or owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership. (b) Subsection (a) does not apply to agreements between spouses regarding their community property. Agreements between spouses regarding rights of survivorship in community property are governed by Part 3 of Chapter XI of this code. B. Section 451 controls if the property is community property. RIGHT OF SURVIVORSHIP. At any time, spouses may agree between themselves that all or part of their community property, then existing or to


be acquired, becomes the property of the surviving spouse on the death of a spouse. Texas Probate Code, Sect. 451 1. An agreement between spouses creating a right of survivorship in community property must be in writing and signed by both spouses. Texas Probate Code, Sect. 452 2. What if the spouses simply took title as “joint tenants with right of survivorship”? 3. Court may validate the agreement. On completion of a hearing on an application under Section 456 of this code, if the court is satisfied that the requisite proof has been made, an order adjudging the agreement valid shall be entered. Certified copies of the agreement and order may be recorded in other counties and may be used in evidence, as the original might be, on the trial of the same matter in any other court, on appeal or otherwise. Texas Probate Code, Sect. 457 a. EFFECT OF ORDER. An agreement between spouses creating a right of survivorship in community property that satisfies the requirements of this code is effective and enforceable without an adjudication. If an order adjudging such an agreement valid is obtained, however, the order shall constitute sufficient authority to all persons owing money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right, that is subject to the provisions of the agreement, and to persons purchasing from or otherwise dealing with the surviving spouse for payment or transfer to the surviving spouse, and the surviving spouse may enforce his or her right to such payment or transfer. Texas Probate Code, Sect. 458 4. PROTECTION OF PERSONS OR ENTITIES ACTING WITHOUT KNOWLEDGE OR NOTICE. (a) Personal Representatives. If the personal representative of a decedent's estate has no actual knowledge of the existence of an agreement creating a right of survivorship in community property in the decedent's surviving spouse, the personal representative shall not be liable to the surviving spouse or to any person claiming from the surviving spouse for selling, exchanging, distributing, or otherwise disposing of the property or an interest therein. (b) Purchaser without Notice of Survivorship Agreement.


(1) If any person or entity purchases real or personal property from a person claiming from a decedent more than six months after the date of the decedent's death, for value, and without notice of the existence of an agreement creating a right of survivorship in the property in the decedent's surviving spouse, the purchaser shall have good title to the interest which the person claiming from the decedent would have had in the absence of the agreement, as against the claims of the surviving spouse or any person claiming from the surviving spouse. (2) If any person or entity purchases real or personal property from the personal representative of a decedent's estate, for value, and without notice of the existence of an agreement creating a right of survivorship in the property in the decedent's surviving spouse, the purchaser shall have good title to the interest which the personal representative would have had the power to convey in the absence of the agreement, as against the claims of the surviving spouse or any person claiming from the surviving spouse. (f) Definitions. Under this section: (1) a person or entity has "actual knowledge" of an agreement creating a right of survivorship in community property or of the revocation of such an agreement only if the person or entity has received written notice or has received the original or a certified copy of the agreement or revoking instrument; (2) a person or entity has "notice" of an agreement creating a right of survivorship in community property or the revocation of such an agreement if the person or entity has actual knowledge of the agreement or revocation or, with respect to real property, if the agreement or revoking instrument is properly recorded in the county in which the real property is located; Texas Probate Code, Sect. 460 IX. DOES THE RULE OF AFTER ACQUIRED TITLE APPLY WHEN PROPERTY IS ACQUIRED THROUGH A DECEDENT ? A. A conveys Blackacre to X; A does not own Blackacre. Later, B dies, and A inherits Blackacre from B. Does X take title because of the rule of after acquired property? B. In Gulf Oil v. Shell Oil, 410 SW2d 260 (Beaumont 1966 n.r.e) the doctrine of after acquired property was applied where the original grantor subsequently acquired a property interest due to the death of another person. In Roberts v. Corbett, 265 SW 127 (Galveston, 1945, ref'd), the doctrine was not applied in a situation where the after acquired title was by descent and distribution, but apparently the decision is based on the fact that the original deed was a quit


claim deed of . . . “all my right title and interest” and did not attempt to convey the property itself. X. DEATH AND THE POWER OF ATTORNEY A. KNOWLEDGE OF DEATH, GUARDIAN OF ESTATE, REVOCATION, DIVORCE, OR MARRIAGE ANNULMENT; GOOD-FAITH ACTS. (a) The revocation by the death of . . . a principal who has executed a durable power of attorney does not revoke or terminate the agency as to the attorney in fact, agent, or other person who, without actual knowledge of the termination of the power by . . . the principal's death . . . acts in good faith under or in reliance on the power. Texas Probate Code, Sect 486 B. AFFIDAVIT OF LACK OF KNOWLEDGE OR TERMINATION OF POWER; RECORDING; GOOD-FAITH RELIANCE. (a) As to acts undertaken in good-faith reliance on the durable power of attorney, an affidavit executed by the attorney in fact or agent under a durable power of attorney stating that the attorney in fact or agent did not have at the time of exercise of the power actual knowledge of the termination of the power by . . . the principal's death . . . is conclusive proof as between the attorney in fact or agent and a person other than the principal or the principal's personal representative dealing with the attorney in fact or agent of the non revocation or non termination of the power at that time. Texas Probate Code, Sect. 487 XI. WHEN A DEED IS RECORDED AFTER THE GRANTOR’S DEATH A. A conveyance of an interest in real property must be in writing, signed by the grantor, and delivered to the grantee. See TEX. PROP. CODE ANN. § 5.021 (Vernon 2003). A deed does not have to be recorded to convey title. Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287, 288 (Tex. 1957); Burris v. McDougald, 832 S.W.2d 707, 709 (Tex. App.-Corpus Christi 1992, no writ). B. A conveyance is effective and title is transferred when the following has occurred: (1) execution of the deed, and (2) delivery of the deed. Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 261 (Tex. 1974); Hicks v. Loveless, 714 S.W.2d 30, 32 (Tex. App.-Dallas 1986, writ ref'd n.r.e.); see also Rothrock v. Rothrock, 104 S.W.3d 135, 138 (Tex. App.-Waco 2003, pet. denied). C. Two elements must be established to prove delivery of a deed: (1) the deed must be delivered into the control of the grantee, and (2) the grantor must intend the deed to become operative as a conveyance. Binford v. Snyder, 144


Tex. 134, 143-44, 189 S.W.2d 471, 475 (1945); Hicks, 714 S.W.2d at 32; see also Bellaire Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205, 213 (Tex. App.-Fort Worth 1992, writ denied); Raymond v. Aquarius Condominium Owners Ass'n, Inc., 662 S.W.2d 82, 91 (Tex. App.-Corpus Christi 1983, no writ); Bennett v. Mings, 535 S.W.2d 408, 409 (Tex. Civ. App.-Texarkana 1976, writ ref'd n.r.e.).

D. Delivery of a deed is the final act required of a Grantor to effectuate transfer of title. Delivery is as essential to the validity of a deed as is the signature on the instrument. Burgess v. Easley, 893 S.W.2d 87, 90 (Tex. App.--Dallas 1994, no writ); McGowen v. Montgomery, 248 S.W.2d 789, 792 (Tex. Civ. App.--Amarillo 1952, no writ). Execution of a deed, standing alone, does not establish delivery. See Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 261-262 (Tex. 1974); Church v. Cocke, 120 Tex. 262, 37 S.W.2d 723 (Tex. 1931). When delivery is questioned, we look to the Grantor's intent to determine whether delivery was made. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661 (1917); Raymond v. Aquarius Condominium Owners Ass'n, Inc., 662 S.W.2d 82, 91 (Tex. App.--1983, no writ). Where delivery is completed with the required intent to make delivery, a subsequent change of intention will not affect the transaction. Davis v. Bond, 141 S.W.2d 979 (Tex. Civ. App.--Texarkana 1940), aff'd, 138 Tex. 206, 158 S.W.2d 297 (1942). Lowery v. Dean, 1996 Tex.App.LEXIS 2862, 2867 (Tex.App. – Beaumont 1996, no pet).

E. The delivery of a deed to a third person also brings into question the

intent of the Grantor. See Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357, 359 (1949); Stout v. Clayton, 674 S.W.2d 821, 825 (Tex. App.--San Antonio 1984, writ ref'd n.r.e.). Where Grantor makes delivery of a deed to a third person, parting with control over such deed, with instruction to third person that the deed is to be delivered to Grantee upon Grantor's death, the conveyance takes affect immediately upon delivery to that third person, vesting title in Grantee to be enjoyed at Grantor's death. See Ragland, 221 S.W.2d at 359; Amend v. Kay, 304 S.W.2d 735, 739 (Tex. Civ. App.--Amarillo 1957, writ ref'd n.r.e.). Lowery v. Dean, et al, 1996 Tex. App. LEXIS 2862, 2868 (Tx.App. Beaumont 1996, no pet).

F. If a grantor delivers a deed to a third person, without any reservation on his or her part of the right to recall it, and with instructions to the third person to deliver it to the grantee upon the grantor's death, he or she thereby makes an effective delivery of the deed as a matter of law. Id. at 359-60. Rothrock, et al v. Rothrock, et al, 104 SW3d 135, 138 (Tx.App. Waco 2003 pet den.).


XII. CONVEYANCE OF FUTURE INTERESTS A. A person may make an inter vivos conveyance of an estate of freehold or inheritance that commences in the future, in the same manner as by a will. Texas Property Code, Sect. 5.041 B. Terrell v. Graham, 576 SW2d 610 (Tex. 1979); Woodworth v. Cortez, 660 SW 2d 561, 564 (Tex. Civ. App. – San Antonio 1983, n.r.e.). XIII. CHANGES IN SECTION 69 OF THE PROBATE CODE A. The statute previously read that any provision in a will regarding a former spouse was to be read as if the former spouse failed to survive the testator. The revised section reads: If, after making a will, the testator’s marriage is dissolved, whether by

divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise. (the new language is underlined)

B. The result of this change is that Section 69 will not cause title to vest in someone who is a relative of the former spouse, unless that person is also a relative of the testator.

1. Is the holding in Estate of Nash, 200 SW3d 914 (Tex. 2007) affected by the change in the statute?

2. Remember that a testator can always write a will in such a way to avoid the application of Section 69.

XIV. THE POWERS OF A GUARDIAN THAT EXTEND BEYOND THE DEATH OF THE WARD

A. January 29 Ward adjudged insane February 20 Guardian qualified March 9 Application to sell real estate March 15 Application granted March 17 Report of private sale March 20 Ward dies * March 23 Sale confirmed


March 25 Guardian’s deed B. Under these facts, it was held that the deed conveyed no title because the judgment (the order confirming sale) on which it was based was void. Easterline v. Bean, 49 SW2d 427 (Tex. 1932).

. . . when a ward dies the probate court loses jurisdiction of the guardianship matter, save and except the guardianship shall be immediately settled and the guardianship discharged as provided by law. The death of the ward stopped the proceedings authorizing the further sale of land belonging to the ward, and such judgment entered after the death of the ward was the judgment of the court having no jurisdiction over the subject matter adjudicated. Id., p. 430. 1. Before a guardianship of a person or estate of a ward is closed on the death of a ward, the guardian, subject to the approval of the court, may make all funeral arrangements, pay for the funeral expense out f the estate of the deceased ward, and pay al other debts out f the estate. If a personal representative of the estate of a deceased ward is appointed, the court shall on the written complaint of the personal representative cause the guarding to be cited to appear and present a final account as provide in Section 749 of this code. Texas Probate Code, Sect. 746.

XV. BANKRUPTCY AND DEATH A. When the debtor in a Chapter 7 bankruptcy dies, the court will probably not dismiss the bankruptcy case. B. Death or incompetency of the debtor shall not abate a liquidation case under chapter 7 of the Code. In such event the estate shall be administered and the case concluded in the same mater, so far as possible, as though the death or incompetency had not occurred. If a reorganization, family farmer’s debt adjustment or individual’s debt adjustment case is pending under chapter 11, chapter 12, or chapter 13, the case may be dismissed; or if further administration is possible and in the best interest of the parties, the case may proceed and be concluded in the same manner, so far as possible, as though the death or incompetency had not occurred. Bankruptcy Rules of Procedure, Rule 1016.

C. If a bankruptcy is pending when a person dies, the only assets that go into the probate estate are the property claimed as exempt in the debtor’s bankruptcy case (assuming no objections to those


exemption clams are sustained) and any property acquired by the debtor after the commencement of the bankruptcy case. Conversely, the only debts for which the probate estate is liable are those incurred by the decedent after the filing of the bankruptcy petition. The result is that the deceased debtor’s pre-bankruptcy debts are discharged in the bankruptcy, and the deceased debtor’s exempt assets are passed to the probate estate free of that debt. In Re: Lucio, 251 BR 705, 709 (Bankr.W.Tx. 2000).

D. What if there is a difference between what the bankruptcy court and the

probate court allow as exempt property? 1. Difference between federal and state exemptions. 2. Restrictions on the homestead exemption.

XVI. WHEN DOES DEVISED OR INHERITED PROPERTY BECOME PART OF A DEBTOR’S ESTATE IN BANKRUPTCY? A. Property interests vest in an heir/devisee upon the death of the decedent,

subject to the personal representative's legal title and superior right to possess estate property and dispose of it to pay estate debts. Kelley v. Marlin, 714 SW2d 303, 305-306 (Tex. 1986).

1. Property is considered to be received by devise or by heirship as of

the date of the death of the decedent. Texas Probate Code, Sect. 37. 2. If a decedent dies before the debtor files bankruptcy, then the

property received from the decedent’s estate will become property of the debtor’s bankruptcy estate. Bankruptcy Code, Sect. 541

3. If the decedent dies within 180 days after the debtor files bankruptcy,

the property received by devise or heirship will also become property of the bankruptcy estate. Sect. 541(a)(5)

B. Disclaimers and bankruptcy; like oil and water. Maybe. 1. If the disclaimer is executed prior to bankruptcy commencement, it is effective and the property disclaimed is not part of the debtor’s estate. Simpson v. Penner, 36 F.3d 450, 452 (5th Cir. 1994); see also In re Atchison, 925 F.2d 209 (7th Cir.), cert. denied sub nom. Jones v. Atchison, 112 S.Ct. 178 (1991).


2. If the disclaimer is executed after bankruptcy commencement, it can be set aside by the trustee as a fraudulent transfer under Sect. 548 of the Bankruptcy Code. In re Schmidt, No. 06-5287 (Bankr. W.D. Tex. 2007).

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