If you recently lost a loved one, you may have heard something about “probate of a will as a Muniment of Title.” When can a Lampasas County resident use a Muniment of Title to probate an estate? 

Probate as a Muniment of Title (“Muniment”) is one of the most basic probate types.  A Muniment requires less paperwork, fewer county filing fees, and when it is recorded in  a county it serves to “instantly” transfer titles of all of the decedent’s property to his beneficiaries.  A Muniment requires that the decedent had a will and also that the estate owes no debts.  No executor is appointed with a Muniment, even if the decedent’s will named an executor (logically, an executor’s function is to carry out the terms of a will, but the Muniment does this automatically, which eliminates the need for appointing an executor).  Because there is no executor, there are no “Letters Testamentary.” These are documents which a court grants to the executor of an estate.  These documents allow the executor to do anything necessary to administer the estate.  If the estate is going to require the use of Letters Testamentary, a Muniment is not the correct probate choice.

Even though the Muniment statutorily transfers title to the beneficiaries, in practice the Muniment works best when the person who passed away had an estate made up of only real estate or perhaps real estate and an automobile, and with the real estate and automobile being Texas property.  The reason for this is that the Muniment is poorly understood by many businesses with which an executor must deal.  Banks and life insurance companies often will not accept a Muniment for the purpose of paying out life insurance policies or transferring bank account, especially if they are businesses with a nationwide presence.  These companies as a matter of policy often insist on “Letters Testamentary” to transfer property.  So while a Muniment would technically be effective, using one in this type of situation is not practical. 

In one special case, a Muniment of Title is the only option that beneficiaries of an estate can use.  This is when a person dies with a will, but more than four years have passed since her death.  Four years is the most common statute of limitations for probating a will in Texas, so if it has been more than four years a beneficiary’s options have narrowed dramatically.

Is a Muniment of Title the right method for your loved one’s estate?  If it is, our experienced attorneys will be able to tell you.  If you need to probate an estate (or even aren’t sure if you need to), come and see us at Martin, Millican, Henderson & Shrum.  We have been serving the people of Lampasas, Copperas Cove, Kempner, Lometa, Llano, and Bend since 1975.  Contact us for a consultation; we will be able to guide you through the Texas probate process efficiently and in the most cost-effective way for your situation.

 This blog post only applies to the laws of Texas. The post may or may not match your individual situation. Be careful not to treat it as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

The concept of adverse possession is a generally misunderstood Texas law that has important consequences for landowners in certain situations.  With the wrong set of facts, a landowner can potentially lose legal title to real property, including lots, houses, and even easements. 

The statutes governing adverse possession can be found in the Texas Civil Practices & Remedies Code, starting at section 16.021.  Adverse possession under the statute is defined as "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person."  The statutes also set several different statutes of limitations (time periods).  These range from three to twenty-five years depending on the facts of the case, although the most common statute of limitation that applies is the ten year time period.  A possible adverse possessor must satisfy all of the statutory conditions for the entire applicable time period.

Over the years, many Texas courts have decided cases that clarify the statutes even more.  This process results in what is called “case law.”  Case law adds that “it must be true that the possessor of the property actually does openly possess it (the belief of entitlement to possess is insufficient), has possessed it continuously for the statutory period (sporadic possession is insufficient), and that the possessor peaceably asserts a claim of right adverse to and exclusive of all others (possession shared with an owner is insufficient). All of these are fact issues for a court to decide.”  Willis, David J. "Chapter 23 ADVERSE POSSESSION." Real Estate Law & Asset Protection for Texas Real Estate Investors. S.l.: First Edition Design Publ, 2013.

Some self-help websites offer advice on how to use adverse possession for personal gain, often promising that you can get free title to acreage or homes.  Many of these websites contain information that is irrelevant or even completely false—and following some of the advice might leave you vulnerable to lawsuits or even get you charged with a crime.  You don’t have to look for very long online to find many news reports of potential adverse possessors, like this Florida man, being ejected from properties by the police or even facing felony charges.  

In our experience, adverse possession is often unintentional and usually results in only small-scale losses to landowners.  For example, a fence which was placed few feet onto a neighbor’s land might, after many years, mean that the person who built the fence has met the requirements of the adverse possession statute.  After bringing the proper suit, the fence builder could have clear title to the extra land he or she fenced off.  Applying the adverse possession statutes in a case like this is logical because it eliminates the need for a survey every time someone wants to build a fence or driveway or other structure.  If adverse possession did not exist, title owners could come onto the scene decades later and demand that anything placed on their land—up to and including parts of houses or other buildings—be removed.  As you can imagine, this may be a huge hassle or a significant expense for the established adverse possessor.

Do you have questions about boundary lines, property rights, or adverse possession in Lampasas County?  Are you concerned that your property might be subject to an adverse possession claim by a third party?  Contact us at Martin, Millican, Henderson & Shrum for a consultation.  

 This blog post only applies to the laws of Texas. The post may or may not match your individual situation. Be careful not to treat it as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

Sometimes, an married individual will pass away leaving a will or other documents which serve to transfer title to the surviving spouse's residence to a party who is not the surviving spouse.  A survivor’s homestead entitles the surviving spouse to occupy or use the homestead for life or for so long as the surviving spouse chooses to do so. This provision is found in the Texas Estates Code §102.002 and was formerly the Texas Probate Code §283; the Texas Probate Code was replaced by the Texas Estates Code on January 1, 2014. 

The survivor's homestead exemption lasts only as long as the spouse occupies or uses the homestead property. If the surviving spouse vacates the property and does not use it, then the property passes either as written in the will or if there is no will then according to the laws of intestacy.  To "use" the property, it is not required that the surviving spouse reside on the homestead property. For example, case law shows that the surviving spouse could rent the land out to satisfy the "use" requirement and he or she would then be entitled to all rents and revenues earned off the homestead rental. See Rancho Oil Co. v. Powell, 175 S.W.2d 960 (1943) and Petrus v. Cage Brothers, 128 S.W.2d 537 (Tex. Civ. App.—San Antonio 1939, writ ref’d n.r.e.). The homestead right protects the survivors homestead from forced sale by creditors and from legal actions for partition by the heirs or beneficiaries of the deceased spouse. Riley v. Riley, 972 S.W.2d 149 (Tex. App.—Texarkana 1998, no pet.).

In exchange for these rights, the survivor is required to maintain the homestead and make payments of all property taxes and mortgage interest without the right of reimbursement from the estate of the deceased spouse. Williams v. Davis, 133 S.W.2d 275, 278 (Tex. Civ. App.—Fort Worth 1939, no writ).

In conclusion, a surviving spouse does not have to move out of the homestead property, even if it should pass to another person according to the deceased spouse's will or the Texas laws of intestacy.  The surviving must pay property tax and any mortgage interest, and he or she must occupy or "use" the land in order to keep the survivor's homestead rights from expiring.

Do you have more questions about probate of an estate, making a will to provide for your spouse, or the rights of a surviving spouse in Lampasas, Kempner, Lometa, Bend, or Copperas Cove? Contact us at Martin, Millican, Henderson & Shrum for a consultation.  

 This blog post only applies to the laws of Texas. The post may or may not match your individual situation. Be careful not to treat it as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

Usually, when a tenant rents a residential property in Lampasas County, the tenant signs a lease that defines his or her rights and obligations regarding the property.  But sometimes the paperwork doesn't happen, and you have an oral rental agreement.  If the tenant moves out without notice, when can the landlord clean out any remaining property and relet the premises?

In a situation where no lease has been signed or the lease does not address this issue, a landlord must refer to Texas Property Code Sec. 92.0081 (b)(2) "Removal of Property and Exclusion of a Residential Tenant."  A landlord may remove the contents of premises abandoned by a tenant.

Unfortunately,  the Texas Property Code does not define the term "abandonment," so when there is no lease or the lease does not clearly state what circumstances would allow qualify as abandonment, then a landlord has to use his or her best judgment. It is important for a landlord to act carefully when declaring abandonment, especially if the lease does not define it. If nothing exists in the lease about abandonment and the landlord removes all of the tenant’s property, a court could consider it to be an illegal eviction and in violation of the tenant’s rights. 

Abandonment is defined under the typical TAA (Texas Apapartment Association) lease as when:

• Everybody appears to have moved out in the landlord’s reasonable judgment;
• Clothes, furniture, and personal belongings have been substantially removed from the dwelling; and
• No one has been in the dwelling for five consecutive days while the rent is due and unpaid; or 
• A dwelling is abandoned 10 days after the death of a sole resident.

The TAA lease continues: "abandonment ends the tenant’s right of possession for all purposes and gives the landlord the immediate right to clean up; make repairs; relet the dwelling; determine any security deposit deductions; and remove property left in the dwelling." 

To avoid the uncertainty of Texas Property Code Sec. 92.0081 (b)(2), landlords may file a Forcible Entry & Detainer action. After giving the occupants notice to vacate, the landlord must file a sworn written complaint in the justice court. Five days after the court grants judgment, it can issue a writ of possession. The constable or sheriff will then post a 24-hour warning notice at the property. If the occupant does not vacate the property after the 24 hours, the constable or sheriff enters the property and removes the occupant and his belongings. The constable puts the belongings on the curb or, in some counties, it is required that the lender arrange for a moving company to put the personal property into storage. 

Do you have more questions about residential leases or eviction of tenants in Lampasas, Kempner, Lometa, Bend, or Copperas Cove? Contact us at Martin, Millican, Henderson & Shrum for a consultation.  

 This blog post only applies to the laws of Texas. The post may or may not match your individual situation. Be careful not to treat it as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.