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My Dad died of cancer early last year and did not leave a written will. What should my brother and I do about his land in Texas?

Mesquite, TX |

My father was an old hillbilly redneck type that didn't like dealing with paperwork. He was legally blind so he tried to avoid it since he was too stubborn to ask for help with anything most of the time. He DID, however, tell my brother and I what he wanted done with his land and other belongings. According to his wishes, my brother and I are to share the land as a co-ownership type of deal. His musical equipment was to be split between my brother and I, and his expensive cowboy hats were to go to his girlfriend. We all agreed upon this and have followed through on everything except for the land. My brother and I are unsure about how to gain ownership of the land. We have no idea what was done with the deed, but we do know that he had no debts on it and always paid the taxes on time.

The land is a small plot of land in Quinlan, Texas and not a high-value property. I am not sure if a verbal will spoken from the father to the sons (e.g. my brother and I) is admissible in court or even valid here in Texas. I would like to note that even though my dad originally lived on his land, my brother and I forced him to move closer to us so that he could get treated for the cancer. He ended up getting an apartment here in the Dallas area. There may also be squatters on the land since my brother and I have not been out there to check on it ever since our father died. I don't know if that will hinder things further but my brother and I would like to be as informed as possible before we even start to proceed. That includes average cost of everything that has to be done if that's possible. (It was skin cancer and lung cancer....he was an albino and a heavy smoker in case anyone is curious.) Thank you all for your time and patience.

Attorney Answers 4

Posted

Sorry to hear about your dad. He sounds like a character.

As a side note, oral wills are no longer recognized in Texas. Of course, once things are transferred through whatever probate procedure you use, you can do whatever you want to do with the property. It is nice to see someone who wants to honor their parents wishes. Too often that is not the case.

You have some good answers here. Since you commented regarding the cheapest options, I figured I would add a little info.

When there is no will the cheapest option is just to file an affidavit of heirship in the county where the property is located and then execute a deed. I generally advise against this because an affidavit of heirship really doesn't transfer the property. It just provides the missing link in the chain of title and sets forth the heirs of the decedent Further, the affidavit has to be recorded for five years before it is presumed true, so in that period of time someone could challenge the affidavit and deed (a long lost child, girlfriend claiming to be common law wife, etc.). I just don't think the savings are worth the risks.

The next cheapest is a small estate affidavit. The requirements are: 1. no will, 2. no petition for probate is pending, 3. it has been 30 days since the date of death, 4. the value is not greater than $50,000 (excluding homestead and exempt property), 5. two disinterested witnesses sign the affidavit, as well as the heirs. If you qualify, this option is pretty simple.

The most costly option would be a determination of heirship and application for appointment of administrator. You might want to use this option if there are other assets out there such as bank accounts that were not joint, stocks, etc.

Most attorneys give a free consultation, so it is worth having an attorney look things over and give you a recommendation.

Good Luck!
Jessica Newill
Newill Law Firm

This answer contains general information. None of the information contained in this communication is intended as legal advice. You should neither act nor refrain from acting based on information obtained from the exchange of messages on this website. None of the information contained in this answer is privileged or confidential. You should retain an attorney to provide legal advice regarding this issue. Newill Law Firm provides estate planning and probate services. Call (210) 383-0546 for a FREE initial consultation.

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Asker

Posted

Thank you, Jessica. That is some very helpful info. Um...one last thing though. Are my brother and I required to provide my dad's death certificate or would that even matter? If you can give a satisfactory answer on this note, I'll give you the best answer since you've covered the majority of what I needed to know. I may also contact you directly for further help in a more official capacity. As always, I thank everyone for their time and effort that they've put into helping others on this site. Sincerely, Victor Clary (AKA Deadbit)

Jessica Anne Newill

Jessica Anne Newill

Posted

Victor, It depends on what you do. If you intitate a court proceeding (small estate affidavit or heirship proceeding) the court will want proof of death, so generally you bring a certified copy of the death certificate. On an affidavit of heirship, you don't have to record the death certificate, but if you were to try to sell the property or transfer it and needed title insurance, the title insurance company would probably want one. Here's a good article on the subject: http://www.lonestarlandlaw.com/Affidavits.html Regards, Jessica Newill

Posted

You will need to contact a lawyer who can explain the various options, but it is likely that you will need to file an application to declare heirship and depending on facts may or may not need to open administration on the estate.

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Posted

I wish I had the opportunity to meet your father. As a "redneck" raised in North Florida myself, he sounds like he was a lot of fun.

In any event, you will wish to contact an experienced Texas estate attorney to walk you through the proper court process so that you can follow your father's wishes with respect to the land. Good luck to you.

This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship.

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6 comments

James P. Frederick

James P. Frederick

Posted

You are a very well cleaned up redneck, these days, Mr. Pankowski! ;-)

Joseph Michael Pankowski Jr

Joseph Michael Pankowski Jr

Posted

that's what my wife says! I do own an F150, though. You can take the Southern boy out of the South, but... :)

James P. Frederick

James P. Frederick

Posted

One of those "Raptor" models??? ;-) Redneck Raptor?

Joseph Michael Pankowski Jr

Joseph Michael Pankowski Jr

Posted

no, no, no, KIng Ranch!

Asker

Posted

You would have liked him. He was a great guy to hang out and drink a beer with. He also had a sense of humor that would put Larry The Cable Guy to shame, lol.

Joseph Michael Pankowski Jr

Joseph Michael Pankowski Jr

Posted

awesome. Your dad sounds like my kind of guy! I hope my kids will have great memories of me like this once I'm gone. Take it easy.

Posted

The other answers are correct and I just add: it isn't scary or too expensive.

There is no legal relationship created or implied by the exchange of message on this website. All statements are not to be construed as legal advice but as general guidance. In all cases, an attorney should be retained to review the full circumstances and deliver advice consistent with the information learned.

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Asker

Posted

My dad's land wasn't a large piece of land. It is a small plot next to Quinlan, Texas. Is there any really cheap option to deal with transferring ownership to my brother and I? I don't have much as far as money goes and I'm not willing to sell my dad's stuff just to make up for it. The land is just big enough to fit a trailer home or a small 1 to 2 bedroom house on (though the house may be pushing it a bit). It is also not a high-value property. My dad's annual taxes on it were less than $300 as far as I can remember.

David M. Pyke

David M. Pyke

Posted

You might file an affidavit of heirship, but I can't guarantee any title company will rely on that to transfer when you and your brother want to sell. Best option is an heirship proceeding which will run about $2500, depending on the circumstances.

Asker

Posted

We don't really have that kind of money to spare, unfortunately. We were wanting to take over it and possibly rent it out or have my brother-in-law build a small vacation home there with spare materials from his build sites.

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