What Constitutes a Claim to Title in Real Estate

By on May 10, 2024   /   Blog   /   Leave a comment

The buying and selling of commercial real estate property can be very profitable, but it is often more complicated than that of residential properties, especially when it comes to a claim to title. The complexity of the issue has many commercial buyers and sellers left wondering what constitutes a claim to title in real estate. Having a knowledgeable real estate attorney guide you through the process can significantly protect your rights and financial transactions.

What Constitutes a Claim to Title in Real Estate?

A claim to title in real estate can be difficult to comprehend without the knowledge of basic terms and definitions. A title is a legal document with critical information about who owns a property, and it may be in the form of a deed.

When a piece of real estate comes up for purchase, a buyer needs to know existing and pertinent information about that property. The best way to accomplish this is to perform a title search. This process is designed to thoroughly examine all recorded transfers for the specific property to ensure there are no problems that could negatively affect the purchase.

A title search is designed to:

  • Effectively trace property ownership
  • Find existing liens
  • Identify encumbrances, including easements, made against the property

If an encumbrance is found on a property, it essentially equates to an outstanding claim to title.

What Does a Claim to Title in Real Estate Mean?

If a claim to title issue in real estate is an encumbrance, what situations might that include? While the following list is not exhaustive, some instances of an encumbrance existing on a property can include a:

  • recorded lien against a property for the purposes of securing a debt
  • failure to pay required taxes
  • mortgage that has been paid in full but not reconveyed in the mortgage deed
  • omission or mistake in the deed
  • prior ownership to the property that was not properly transferred to a later owner
  • undisclosed owner
  • disagreement regarding property ownership that could include hostile takeovers via adverse possession

If a title search yields a claim to title, it then becomes the buyer’s responsibility to review any claims and then file their objections to that search report by the specified deadline. Once the buyer has put this in motion the seller typically has a window of time in which they can respond to and resolve those concerns, or the buyer can walk away from the transaction.

How a Real Estate Attorney Can Help

When dealing with commercial real estate and what constitutes as a claim to title, it is advised to have a knowledgeable attorney working by your side and advocating to protect your rights. Residential real estate and commercial real estate can be vastly different at times, so ensure that you are working with legal counsel that specifically understands the innerworkings of commercial real estate deals.

A commercial real estate attorney can assist with the title examination process that happens while a property is under contract. Problems or concerns identified during the title examination must then be presented to the buyer, so they can decide whether to pursue the purchase or withdraw from the transaction altogether.

In commercial real estate, a title examination can be detailed and complex with a number of moving parts. For individuals not familiar with the wide range of issues that can arise or the legal terminology that goes with them, this process is best handled with the presence of an attorney. Legal counsel can advocate for a client’s rights and help them decide the best path forward from a claim to title for a property they originally planned to purchase.

What to Look for in a Commercial Real Estate Attorney for a Claim to Title

When a business needs to investigate what constitutes as a claim to a title in real estate, it is key that they work with an attorney with experience in this specific area of law. Some considerations to keep in mind when looking for a commercial real estate attorney who can help with a claim to title include:

  • Experience and expertise in representing clients in claim to title cases
  • Proper licensing to practice within the state of Texas
  • The number of cases they have successfully represented concerning this issue
  • The ability to officially represent an entity in a court of law, should it be necessary

 

Make the most of your commercial transactions. If you are a buyer or seller dealing with an unexpected claim to title in real estate, reach out to a trustworthy and reputable commercial real estate attorney for help.

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Why A Second Marriage Could Be A Fast Track to A Lawsuit

By on May 7, 2024   /   Blog   /   Leave a comment

Marriage is a celebrated union, but for those entering into a second marriage, it could also be the fast track to a lawsuit. Remarrying creates an extended family in which not everyone may get along. Sometimes a second marriage can be an issue for children of a previous marriage and the new spouse, especially when it comes to an individual’s estate. It is for this reason, and countless others, that proper estate planning is critical to protecting your assets and having them distributed exactly as you wish in the event of your death.

Possible Legal Complications for Second Marriages

While a second marriage can be full of new hope and a growing family unit, there may be some legal complications that can come with them. In the grand scheme of things, it largely boils down to one concept: lack of estate planning.

Proper estate planning is essential for second marriages because without it, the children and the new spouse may:

  • Question each other’s motives for their relationships with the asset holder
  • Be at odds with one another about the distribution of assets
  • Disagree on how to manage family assets
  • Argue about how to operate a business after the principal owner has passed
  • Resort to contentious legal battles that typically cost hundreds, if not thousands, of dollars

What You Can Do to Reduce Estate Complications of a Second Marriage

While estate issues are often inherent to a second marriage, there are steps that individuals can take to limit those complications:

  1. Prenuptial Agreement. Although it may be awkward, it is an excellent idea for those entering a second marriage to have a prenuptial agreement drafted before the marriage takes place. The purpose in doing so is having a legal document drafted by an attorney that discloses both spouses’ liabilities, assets, and income to facilitate assets being distributed specifically as an individual wishes in the event of divorce or death. It is highly recommended that both spouses get legal representation for a prenuptial agreement.
  2. With a living trust, a creator of sound mind can designate specific beneficiaries. An attorney proficient in estate planning can assist with the creation or amending of a trust. This strategy can be effective for bequeathing assets and managing estate and inheritance taxes.
  3. Proactive Measures. It is beneficial to take proactive measures to review beneficiary designations on important policies, accounts, and documents. This can include retirement accounts, life insurance policies, bank accounts, real estate, and even power of attorney.

Each of these steps should be taken with the following in mind:

  • Provision for children from a previous marriage
  • Provision for your new spouse
  • Provision for children that may result from the second marriage

Special Considerations to Discuss with An Attorney

Particularly during a time of such joy and excitement as that which comes with a new marriage, estate planning can get pushed to the back burner, but doing so is a grave disservice to yourself and your loved ones, so don’t wait.

Some items to discuss with an attorney regarding estate planning for a second marriage include:

  • Is it a second (or third) marriage for one or both of you?
  • Do one or both of you have children from a previous marriage?
  • Have you considered getting a prenuptial agreement?
  • Do you already have a will in place?
  • If so, have you named an executor of your will and is it still who you want it to be?
  • Is there a trust in place, and if not, does there need to be?
  • Are you content with named beneficiaries for insurance and retirement plans or do they need changes?
  • Will assets designated for children be distributed before or after the new spouse passes away?
  • Are you still financially obligated to a previous spouse?
  • Have you discussed having separate bank accounts vs. joint banking accounts?

These can be difficult conversations to have, but by putting provisions in place now, it could save those you love additional emotional angst after your passing.

Why You Need an Attorney for Second Marriage Estate Planning

Estate planning for a first marriage can be incredibly complex based on an individual’s wealth and assets, but it becomes substantially more complex for a second marriage. Working with an experienced and reputable estate planning attorney can give an individual more confidence in the process, the validity of documents created, and peace of mind that their assets will be distributed according to their specific wishes.

When searching for legal representation:

  • Ensure the individual is licensed to practice in the state.
  • Verify their previous representation of similar cases and their outcomes.
  • Research the experiences of previous clients.
  • Establish how the attorney best communicates with clients.
  • Verify the cost of representation and any associated fees.

If you are entering a second (or third or fourth) marriage, it is important to seek counsel from an estate planning attorney to protect your loved ones and help avoid the fast track toward a lawsuit.

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Episode 432: Interview with a Former Probate Judge

By on May 3, 2024   /   The Legal Play Podcast   /   Leave a comment

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This edition of the Legal Play includes special guest Judge Georgia L. Akers. In her legal career of 30+ years, Judge Akers has served as an attorney and as an associate probate judge. She spent more than a decade presiding as an associate judge over Harris County Probate Court No. 3 and, in that time, she learned and experienced many things from behind the bench. In addition to her work in probate court, Judge Akers also teaches estate administration at the University of Houston Law Center. There, she instructs students in the practical application of probate law in Texas, specifically concerning how estates are administered. Today, Judge Akers will share some of those valuable insights.

What Does an Associate Probate Judge Do?

An associate probate judge is empowered to perform any role that a probate judge would perform. The primary difference is that an associate judge doesn’t run for office – they are appointed by the judge to assist the court in any area necessary.

In the case of Judge Akers, she was in charge of hearing the will docket, guardianship docket and heirship docket. She would also preside over trials assigned to her by the probate judge.

“These were trials that needed a lot of patience and time,” according to Judge Akers.

Probate courts are intended only for probate cases. At Harris County Probate Court No. 3, the judges primarily hear wills, trusts, guardianships, and civil mental health documents.

“When someone dies, the will has to be probated, or there has to be some action taken in order to manage the estate. It is up to the probate court to hear those matters, rule on those matters, and name an appropriate person to serve.”

In the Texas Statutes Probate Code, any matters incident to probating an estate are also heard in probate court, which can expand the scope of the case.

“That gives us a lot of leeway to hear divorce cases in a situation with a guardianship, or a personal injury lawsuit, or a contract dispute if it’s involved in a decedent’s estate.”

According to Judge Akers, it’s a matter of convenience and efficiency, as it doesn’t make sense to split the details of the probate case among multiple courts.

What Makes Probate Court Cases Unique?

The documents used to develop a probate case – a will, for example – often have flaws that interfere with how the estate is managed. Judge Akers’ work as a probate judge often involves reviewing these documents and determining how they can be amended so they can pass through probate. In this way, probate judges and attorneys work closely with the decedent’s family (and other beneficiaries) to start the probate process.

There are other quirks specific to probate cases in Texas, such as:

  • Probate cases require detailed, specialized knowledge – Judge Akers frequently receives communication from other attorneys concerning probate questions. If you don’t practice it, it can be difficult to intuit probate law, even for experienced attorneys. Fortunately, Texas has a robust estates code that provides solutions to just about any issue.“If there’s a problem with the will, there is some place in the estates code that will fix it, or at least get it into probate,” Akers observed.

    It was also common for Judge Akers to support the attorney while questioning the witness, asking the witness questions that may have been missed. This would be unusual in other areas of law.

     

  • Probate cases can involve unusual assets or will-related provisions – You never know what you’ll get from an estate case, and Judge Akers has presided over some that have involved unique assets. For example, her court oversaw the case of Dr. Michael DeBakey’s estate, a brilliant cardiovascular surgeon who had more than a dozen patents for surgical instruments to his name when he died. There was also the case of a woman whose aunt was the creator of the original Texas Chainsaw Massacre film. The aunt died without a will and the rights to the film, highly sought after by production companies, passed to the niece.Clearly, probate courts must be prepared for anything.

     

  • Probate cases can be emotionally charged affairs – “The death of a loved one changes the family dynamics,” said Akers. This is obvious in many probate cases, where the decedent’s passing can bring out the best, and worst, in people. And for many loved ones, probate hearings feel like the first major reminder that their family member is gone. Unsurprisingly, Judge Akers saw many people take the stand in tears, adding, “I always had a box of Kleenex on the bench.”Although she witnessed plenty of infighting among family members over estates, she also recalled family members who did the right thing during probate. For example, there was the case where a woman left behind all of her assets to one of her four children through right of survivorship. It wasn’t her intention to leave everything to one of the four children, but she did not have her will completely in order.

    One son had legal standing to claim ownership over all his mother’s assets, but instead he did the honorable thing. He told Judge Akers, “That’s not what my mother wanted. She wanted it split between the four of us.” Judge Akers reflected, “That’s a good family. That’s a strong family.”

What Are Some Issues That Probate Courts Contend With?

Probate courts are extremely busy, with dozens of cases that must be heard in a single day. As such, there are professional expectations for both attorneys and judges.

However, given the complex and specialized nature of probate cases, it was common for lawyers to show up underprepared. In light of this, Judge Akers and Harris County Probate Court No. 3 would contact attorneys ahead of their court date to provide helpful reminders of what they would need to bring or do.

Since these attorneys were so busy and their cases potentially complex, Judge Akers respects attorneys who show up on time.

“I prided myself on always being on time, or even early, because you have a docket of 30 attorneys plus their clients who have come downtown. They probably don’t want to be there. I had one lawyer who couldn’t be on time if his life depended on it. I said I’d let him be the first one on the docket if he showed up on time. And one time he did, and I said, ‘Come on down.’”

Also important for attorneys – have your questions in writing that will be used to verify proof of death and other facts. These must be condensed down into writing, and failing to do so will cause delays or make it impossible to move the case forward.

What Are Some of Judge Akers’ Memorable Probate Court Moments?

Judge Akers has overseen some memorable cases during her time as an associate probate judge and attorney, and a few have left an indelible mark on her career. One is amusing and two are solemn.

The amusing case involved a widower. Following his wife’s passing, her will was read to the court while Judge Akers was presiding and, in it, she confessed that she could have been a better partner to her husband while she was alive. The woman’s will asked her two sisters to find her surviving husband a good wife.

Judge Akers laughingly recalled, “I remember one of her two sisters popped up and yelled ‘I don’t want him!’”

But as probate ultimately involves the death of someone, Judge Akers has witnessed many solemn, profound moments over the years.

One case started with a small estate’s affidavit that Harris County Probate Court No. 3 received. The affidavit had some issues, so Judge Akers contacted the woman who sent the affidavit to help correct it. “It turned out her son was at the Pentagon on 9/11, and I told her that we would take care of it.”

Judge Akers sent out e-mails to probate lawyers familiar with the court to help put together an heirship and other documents, and the response was heartening. Her email box filled up with messages saying, we’ll do it, we’ll pay the fees, we’ll do whatever you want. And when the hearing for that heirship was read in our court, you could hear a pin drop.

Another historically momentous case was the estate cases for the Challenger crew, which were heard by Judge Akers’ court. Those cases involved a sum of money given to the surviving family members from the U.S. government, money that was meant to be passed, at least in part, to the crew’s children. “The attorneys got creative in how they set up trusts for those children,” said Akers.

Probate Law Can Lead to an Interesting Career, as Judge Akers Law Journey Shows

Probate law is complex and nuanced, but for those attorneys and judges who practice probate, it can make for a fulfilling, meaningful career. We thank Judge Akers for her time and willingness to share insights from her time behind the bench.

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