Category Archives: Real Estate

What Does It Mean to Probate a Will as a Muniment of Title?

A Muniment of Title is an alternative method of probating a will that is unique to Texas.  Probating a will as a Muniment of Title is more efficient than a full probate appointing an independent executor which often results in significantly lower costs.  Like most things, there are advantages and disadvantages to the Muniment of Title option which I discuss further below.  You should consult with an attorney to determine whether probating a will as a Muniment of Title is appropriate for your situation.

What are the requirements to probate a will as a Muniment of Title?

The requirements to probate a will as a Muniment of Title closely follow those required to probate any will, with two key additions:

  1. The estate cannot have any debts other than those secured by liens on real property; and
  2. There can be no other need for administration of the estate.

What are the advantages of probating a will as a Muniment of Title?

There are several advantages to probating the will as a Muniment of Title – with the biggest being money.  Because of the streamlined process, the costs involved in probating a will as a Muniment of Title are significantly less than a full probate.  There is only one court hearing and no need to provide notice to beneficiaries, creditors, or to file an inventory, appraisement and list of claims.

Another benefit is that there is no executor appointed by the court when probating the will as a Muniment of Title.  This means no one is subject to the duties, responsibilities, and potential liabilities of serving as executor of the estate.  This also means there is no additional proof requirements for someone to qualify as executor of the estate.

What are the disadvantages of probating a will as a Muniment of Title?

While there is some advantage to not appointing an executor as in a full probate, this is also a disadvantage.  No executor means that there is no one individual responsible for overseeing the collection of assets and distribution to beneficiaries.  That also means that should a need to administer the estate come up after the will is admitted to probate as a Muniment of Title, then the estate will have to start over with a full probate to have a court appoint an executor which results in an increase in costs.

Another important consideration is that probating a will as a Muniment of Title may not be effective to transfer all property held in the testator’s name.  I discuss this further below.

What type of property can you transfer using the Muniment of Title process?

In theory, any property is subject to transfer by probating the will as a Muniment of Title. The Texas Estates Code states that:

“A person who is entitled to property under the provisions of a will admitted to probate as a muniment of title is entitled to deal with and treat the property in the same manner as if the record of title to the property was vested in the person’s name.”

Unfortunately, this isn’t true in the real world.  Probating a will as a Muniment of Title has proven most effective for transferring title to real property and to automobiles registered in Texas.

A Muniment of Title may not be effective for transferring other types of property.  For example, bank accounts and brokerage accounts without POD designations may not accept an order under a Muniment of Title proceeding.  Life insurance without a beneficiary designation will often not accept an order probating a will as a Muniment of Title to transfer property.

If the deceased owned property in another state, then probating a will as a Muniment of Title in Texas may not allow you to take advantage of the ancillary probate options available in the other state.

Tips & Resources for Homeowners Recovering from Hurricane Harvey

There are countless legal issues that will arise in the aftermath of Hurricane Harvey.  This article is aimed at providing some tips and resources specifically for homeowners with property damage requiring repair.  The first few weeks are about cleanup and recovery.  After that time the repairs begin and that is when a lot of homeowners can get into even more trouble.

The unfortunate truth is that a lot of contractors will descend upon areas devastated by natural disasters such as this.  The large volume of repair work needed combined with a lot folks in desperate situations is a breeding ground for fraudulent and criminal activity.  Invariably, fraudulent contractors come in, steal money, and get out before they are ever caught.  The homeowner ends up losing twice – once with the property damage and a second time with the money they thought they paying to have their home repaired.   Those most at risk from these types of predators include the elderly, those with limited English skills, and those with low income.

There is no way to guarantee you won’t fall prey to a bad contractor.  But here are some things you can do to increase your odds.

Tips to Limit the Risk that a Bad Contractor Will Take Advantage of you

  1. Be patient!  It’s tough to do that when your home has been destroyed or suffered significant damage and you just want a safe secure place to live.  But that desperation is exactly what bad contractors are hoping to take advantage of.  So be patient throughout the process – don’t make quick decisions.  Don’t be afraid to sleep on it or take a few days to think about a decision.   Finding the right contractor that will work with you on many of the issues below may take a lot of time but spend that time.  Believe me – you will regret your impatience if it leads to someone taking advantage of you.
  2. Always get multiple estimates.  Never sign an agreement with the first contractor you come across.  There can be significant differences in costs and estimates from one contractor to the next.  Take the time to learn about the range of prices and the differences in the estimates (or contractor’s method of business) that account for those differences in pricing.
  3. Avoid paying the contractor significant money up front.  It is not unreasonable for a contractor to require some form of down payment for supplies and materials when he starts work on your project.  But it also is not necessary.   It is certainly not necessary for the homeowner to put down a large fixed percentage of the total cost up front.  Or worse – pay in full up front.  If you have a contractor demanding you make such a payment – move on.  If you have a contractor pushing you for a down payment so he can “put you on his schedule” – move on.
  4. Always have a written contract for the work.  Never pay money to a contractor without a written agreement signed by both you and the contractor.  The agreement should specifically state the scope of work that the contractor is responsible for performing and the price for that work.  The contract should specify when payment is due – upon completion or periodically.  If periodically, then the contract should set specific bench marks for the contractor to earn each periodic payment.  More detail is better.
  5. Inquire whether the contractor will use employees or subcontractors.  Make sure the answer is stated in the contract.  If the contractor uses subcontractors, you must get lien releases from the subcontractors showing that the subcontractor has been paid in full at the time you make any payments.  If you do not then you risk the subcontractors filing a mechanic’s lien on your home for the work they performed if you pay the contractor and he does not pay the subs.  Make sure your obligation to make any payment is contingent on receiving those releases.  Make sure the subcontractors are licensed, insured, and bonded.
  6. Home Equity Loans.  You may need a loan to repair your property and this is not uncommon.  However, do not allow the contractor to push you into that decision or “recommend” a lender to you.  It is an all too common scam for a contractor to induce a homeowner into securing a home equity loan, then take the loan proceeds and leave with out performing any work.  This leaves the homeowner with a loan payment, a lien on their house, no more equity, and the repairs still need to be done.
  7. Verify the contractor.  This means check his license.  Check his liability insurance.  Check his workman’s compensation insurance.  Check his Better Business Bureau rating.  Is the contractor bonded? Ask for referrals – and contact those people.  Verify the contractor’s address – a lot of contractors will chase storms from out of state.  You are less likely to run into trouble if you work with a local contractor that has a long history of successful services in your area.  If he is using subcontractors, ask for their credentials.
  8. Get a firm start date and time estimate.  Then put it into the contract.  It is not uncommon for the start date to slip a few days or even a week or two.  But address that possibility in the contractor and secure a right to walk away from the contract if the contractor does not begin work on or before a certain date so that you are not stuck waiting.  See #3 above – do not make any payment prior to the date the contractor actually begins work.  Also – get a firm estimate on the time to complete the work.  See #3 above – do not pay your contractor in full before the work is done and you receive all lien releases (see #5).  Do not pay the contractor on anything but the agreed upon schedule under any circumstances.  If you properly addressed the payment schedule in your contract then this will provide you with some protection should the contractor leave mid-job.
  9. Here are some additional miscellaneous red flags.  Contractors soliciting door to door.  Out of state contractors.  Contractors using P.O. Box addresses.  Contractors with no history that you can locate.  Contractors with phone numbers from a non-local area code.  Contractors who cannot or will not address any of the issues above.

Additional Resources for Homeowners Recovering from Hurricane Harvey

Below are links to some additional resources:

  1. State Bar of Texas Disaster Recovery Manual
  2. State Bar of Texas Disaster Relief Page
  3. Federal Emergency Management Agency (FEMA)Hurricane Harvey Page
  4. Office of the Governor Hurricane Page
  5. Office of the Attorney General Consumer Protection
  6. Texas Association of Builders (with more information on choosing a reputable contractor)
  7. City of Houston Disaster Recovery

Texas AG Issues Opinion Requiring County Clerks to Record Affidavits of Adverse Possession

The Texas Attorney General recently issued opinion KP-0165 addressing whether county clerks in Texas are required to accept and file affidavits of adverse possession.  The Opinion concludes that yes, county clerks are required to accept and file affidavits of adverse possession.

The Opinion begins its analysis by noting that county clerks are mandated by law to record any instrument that is required or permitted by law to be recorded.  The Texas Property Code states that an affidavit may be recorded if it is properly acknowledged or sworn to and concerns real property.  An affidavit of adverse possession concerns real property, therefore a properly executed affidavit must be recorded by the county clerk.

However, the Opinion goes on to state that merely filing an affidavit of adverse possession does not thereby create an interest in the property by adverse possession.  The individual or company claiming title by adverse possession must still meet the legal requirements set forth by law.

The Opinion also states that if a county clerk has a reasonable basis to believe in good faith that the affidavit of adverse possession is fraudulent, then the clerk must provide written notice of the filing to the last known address of any person named as owning an interest in the real property.