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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

  1. Best answer

    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.

  2. 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.

  3. 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.

  4. 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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