CraveyLaw

Community Property

Texas is one of a handful of states that recognizes community property in marriage. Property owned by married persons is either community property or separate property.

A. Definitions

1. Separate Property consists of: Property owned by a spouse before the marriage; Property acquired by one spouse during the marriage by gift, devise, or descent; and. Proceeds recovered in a lawsuit for personal injuries sustained by one spouse.

2. Community Property consists of: Everything acquired during marriage that is not separate property. For example, a spouse’s earnings are community property.

B. Tracing separate and community

3. Community property belongs jointly to husband and wife; each spouse controls only his or her undivided one half. Separate property, on the other hand, belongs exclusively to one spouse. One spouse’s creditors generally cannot reach the other spouse’s separate property, but they may be able to reach community property.

The name on the deed or certificate of title does not matter. What matters is whether the property was acquired during marriage.

4. At the dissolution of a marriage (death or divorce), all property on hand is presumed to be community property, absent clear and convincing evidence to the contrary. If separate property has been “commingled” with community property, the community acquires a claim on the separate property.

5. To keep separate property separate, you must segregate it from community property and keep clear records of its ownership. In some situations, recording a schedule of a spouse’s separate property in the county’s deed records is appropriate.

For example, when a spouse makes mortgage payments on a separate property house from his earnings, then the community “estate” owns a claim against the separate “estate.”

6. Rents, revenue, and income earned from separate property are community property. However, the proceeds from the sale of separate property are separate property, provided they are tracked and not commingled.

7. A couple may use a Marital Property Agreement to convert community property to separate property or vice versa. Separate property created under such an agreement has the same characteristics as other separate property, so income derived from this property would be community property (and the proceeds from the sale of this property would be separate property) unless the agreement states otherwise.

See Texas Family Code § 3.001 et seq.

The Estate Executor’s Powers & Duties

Aside from all the work of probating an estate, there is the work of administration.  This must be done according to Texas law, and according the decedent’s Will, if there was one.

In an Independent Administration, once the court has approved the estate inventory, there is no further action to be done in probate.  The executor generally can carry out her duties without any further orders from the court.

The powers and duties are broad and deep, and begin as soon as Letters Testamentary have been issued.  The executor is required to use prudence and ordinary diligence in administering the estate.  This is a brief checklist of the executor’s powers and duties.

1.            Handle estate funds separately from personal funds.  At the outset, obtain a federal tax number (EIN) for the estate.  With the tax number, open an estate bank account.  All estate transactions must go through this account.

2.       Take care of the property of the estate.  Keep any buildings in repair and insured.  Sell real estate or personal property belonging to the estate when necessary.  Sign deeds and other documents as executor and not individually.  Take possession of all personal property and records.

3.        Collect all claims and recover all property owned by the estate.  For example, if someone owed money to the Decedent, the Executor collets it.  This includes pursuing or defending against lawsuits on behalf of the estate.

4.         Provide to the Attorney an Inventory of all estate assets and all claims due to the estate and have the Attorney file it with the Court.

5.            Pay expenses of last illness, expenses of burial, and expenses of administration first.  The Executor may receive reasonable compensation for services rendered to the estate.  The Executor may hire lawyers, accountants, and other professionals as needed.

6.      Pay all claims against the estate properly.  File tax returns of the Decedent and of the estate.  If there is any chance that the estate will not have enough funds to pay all debts of decedent, then pay them in the order set out by state law.

7.         Keep records of all transactions on behalf of the estate with receipts, and render an accounting if demanded by any of the beneficiaries.

8.         Maintain a cash reserve until all debts, claims, and expenses have been paid before making final distribution to the beneficiaries.

9.            Distribute the net estate to the beneficiaries according to the instructions in the Will.

Real Estate sales documents

Generally, a real estate sale begins with a contract and ends with a deed. The deed fulfills the contract, and the contract is merged into the deed.

A Real Estate Sales Contract

1. Is negotiated between the parties.

A buyer and seller negotiate about the purchase and sale of a piece of property. They negotiate about what conditions will permit the buyer or seller to terminate the contract and cancel the purchase and sale, how much the buyer will pay, when the buyer will pay, what rights in the property the seller will sell, what obligations the buyer or seller will have after the purchase and sale.

2. Sets the terms of the sale.

Once the buyer and seller agree on all the terms of the sale, they sign a contract that spells out all the details of their agreement.

The contract serves three primary purposes. It sets the date of closing, lists the actions the buyer and seller must or may take before closing (the inspection period), and describes the terms that must be in the deed.

3. Ceases to have any force after the deed is signed.

When the deed is signed, the contract is said to be merged into it. It is assumed that all the actions that were supposed to be taken before closing were taken or were waived. And it is assumed that all the important terms in the contract were translated into the deed or were waived.

4. Common Additional documents are
Seller’s disclosure of property condition.
Seller’s disclosure of lead-based paint. (home built before 1978)
Title commitment.
Survey
Settlement statement

A General Warranty Deed

1. Is drafted according to the contract.

If the contract calls for a straightforward sale, then the deed will be pretty short, though it does contain some ‘magic words.’ If the sale is more complicated, the deed will be longer. The most common complication is an installment sale, in which case the deed will contain a lien allowing the seller to take the property back if the buyer doesn’t make all the payments.

2. Is signed at closing.

The closing is a meeting at which the buyer gives payment and the seller signs the deed. Any other documents that must be signed for the sale will also be signed at the closing. In a very real sense, this closes the sale. The buyer walks out an owner, and the seller walks out a former owner.

3. Transfers title to the property.

The signed deed is filed in the real property records at the county clerk’s office. That gives notice to the world of who owns the property. That is the document that a court will examine if there is ever a dispute about who owns the property.

4. Lists any other agreements pertaining to the property.

Any other agreements that affect the property must be listed in the deed, or they will not affect title to the property. If the buyer has promised to pay for the property over a period of time, the promissory note will be listed in the deed.

A Deed of Trust & Real Estate Lien Note

1. Deed of trust sets out procedure for non-judicial foreclosure if buyer defaults.

2. Real estate lien note sets the terms of the installment loan that the buyer is using to finance the purchase. It can be between the buyer and the seller or between the buyer and a third party.

Process for probating a Will

This is a brief outline of the process for probating the Will of a Decedent. The outline is not exhaustive, but it gives a general overview.

1. The Attorney files an Application Probate of Will Produced in Court and for Letters Testamentary with the probate court. The application must be accompanied by: Filing fee; Original Death Certificate; and Original Will.

2. Wait 10-15 days while Citation to Interested Parties is posted by the clerk.

3. Set a hearing in Probate Court.

4. The Applicant and Applicant’s Attorney attend the hearing in Probate Court. Generally takes less than a half hour. Applicant testifies to the death of Decedent, authenticity of the Will, and other facts. Judge signs the Order appointing Applicant to be Executor. Executor signs the Oath. The Clerk issues Letters Testamentary.

5. Executor administers the estate. Gathers all assets. Pays bills. Distributes remaining assets to the beneficiaries.

6. Attorney provides notices required by law. Publishes Notice to Claimants in local newspaper within 30 days. Sends Notice to Secured Creditors within 60 days. Sends Notice to Beneficiaries within 60 days. Files Proof or Certificates of Notice with probate court.

7. Attorney files Estate Inventory with the Probate Court within 90 days. Executor must furnish Attorney with information for drafting the Inventory. Court signs Order approving inventory. Probate Court does not require anything more.

8. Executor may have Attorney file a Closing Report or Notice of Closing. This is optional. It’s not required. This ends the Executor’s responsibility and authority.

The probate process is complete. There may be more work to do to administer the estate.

Sources:
Texas Estates Code § 256.051-256.053.
Texas Estates Code § 258.001
Texas Estates Code §§ 256.151, 256.152, 256.201, 305.051, 306.003, 306.004
Texas Estates Code §§ 402.002, 351.101, 351.102, 351.151—351.153, 351.051-351.054, 355.101-355.108.
Texas Estates Code §§ 308.051-308.052
Texas Estates Code § 308.053.
Texas Estates Code §§ 308.002-308.004.
Texas Estates Code §§ 309.051-309.054.
© 2022 by Robin T. Cravey

Does the Will take the place of the family tree?

Yes. The Will overrides the family tree.

The default method to distribute an estate under Texas law is inheritance according to the family tree. When you write a will, you can choose to distribute your estate to anyone you wish. Whether through inheritance or by will, distributing an estate of any substance requires the approval of a probate court.

Heirship is the standard path for distributing an estate. Texas law defines the order of heirs. Depending on the family history of the deceased person, the person’s heirs begin with spouse, children, and descendants; then ascend to the parents; then descend through siblings, nieces and nephews, and down the family tree. The family tree can be complicated in complex families with multiple marriages and stepchildren.

Writing a will tells the world that you do not want to have your estate distributed according to a set of standard rules. You’ve thought about it. You’ve declared your wishes. And you’ve appointed an executor to carry out your wishes.

The probate court will rule on an estate, whether it is distributed by heirship or by will. In an heirship proceeding, the court has a big job. It must determine who the heirs are, and carefully supervise the person who administers the estate. In probating a will, the court has an easier job. It must simply confirm that the will is authentic, and confirm that the person appointed by the will as executor is able to serve. Because the person who wrote the will made his wishes known and endorsed the executor, the court can turn the executor loose to do his job according to his conscience.

Source: Texas Estates Code §§ 32.001, 201.001-201.003, 202, 251.002, 256.

Change happens

We end the year as we began—with a change. At the beginning of the year, I moved out of the Vaughn Building, my office home for over 20 years. Now, I am letting go of my office space on Ben White to join the growing movement to work from home.

If only I had known, when I lost my lease at the Vaughn Building, the big change the world was about to undergo. I took another office, because, of course, I needed a place to meet with clients. But then the pandemic put an end to my office meetings.

I regretted moving my office out of downtown, because I liked being able to walk to the courthouse for hearings. But now the hearings are on Zoom.

All this came at the end of a years-long project to digitize all my files. (Thanks to many, but mostly to Jane!) Another reason to maintain an office—cabinets full of paper—was gone.

Meanwhile, Sierra, my legal assistant, was campaigning to work from home.

After a short hospital stay in September, I made the decision. I negotiated an early end to my office lease. And I’m out. Working from home.

Check out my new address. It’s a post office box. So it’s not the law office: it’s the law practice. Sierra is happy, I think.

I miss meeting with clients. I hope the inauguration of a competent chief executive will eventually make it safe to hold meetings again. Meanwhile, I’m working out a flex office where I can meet with people when needed.

There was one more reason I kept an office. When I left the office and went home, I left the work behind. Now, it’s at home, always present. But I still have the habit of mind that when I quit for the day, I’m done.

Although I’m also working out a succession plan with a lawyer I trust who can step into my place if necessary, I’m planning to live a long time. I’m not even 70 years old, and law is a profession that allows a person to work as long as they have the desire, or as long as they have need and ability. At present I check all of those boxes. But change happens.

Recently, I thought about leaving law practice. I’ve never done anything so long as I’ve done this. In the event, I was surprised to realize that I didn’t want to quit. I have the confidence that comes from knowing what I’m doing, learned by making every mistake I could. Practicing law allows me to make decisions and act on them. It affords me the freedom to devote time to quixotic crusades or creative reveries.

I enjoy practicing law. I revel in my relationship of trust and service with my clients. The stories, and the insights into human nature, are even deeper than those I enjoyed at the beginning of my working life, when I drove a taxi in Austin. I expect to continue for a good while. And even in continuity, change happens.

Managing time effectively

Managing time effectively is a key to getting more done, and getting it done better. Allocating our efforts among the many tasks demanding attention is difficult. Employing the time allotted is even more difficult.

Allocating the time

Allocating time requires scheduling. It goes beyond just figuring out what to do next. It means blocking out time for tasks over a planning period.

When scheduling tasks, consider these factors: importance; urgency; duration. Ask how important the task is to our mission. Ask what the deadline is for the task. Ask how long the task will take.

Allotting enough time for a task means that you only have to pull files, set up, close down, and put away files once for that task.

Employing the time

Employing the time requires concentrating. Most important is to avoid interruptions. Every interruption costs time, because it breaks concentration. It adds overhead to timekeeping.

Some interruptions are inevitable, but some can be avoided. Avoid distractions: give your full attention to the task at hand. “Multitasking” can mean mistakes. Distractions such as listening to the radio, talking on the phone, and chatting should not be indulged while working. Punch out.

Setting aside time

Set aside concentration time for productive work. At least three hours each day should be set aside so. The smallest block of concentration time should be one hour. During each block of concentration time, interruptions will be controlled.

Three simple steps: allocate time; employ time, and set aside time, form the ladder that you will climb to your goals.

Time flies like an arrow. Fruit flies like a banana.

Move the earth

Give me a place to stand, and I will move the earth.
Archimedes

I can’t write to you today without acknowledging the turmoil sweeping over our country. A virus is ravaging our population. Unemployment and financial hardship are depressing our society. Fear and fire are scarring our cities. The whole planet is clenched in a paroxysm of death and devolution. Is this the apocalypse? I don’t think so.

I do think that we are living through an era of frightening uncertainty. What can we do?

Archimedes made his offer to move the earth based on the power of a lever. This is a time for us to look for what leverage is available to us.

In a time of quarantine and sheltering in place, it’s natural to want to withdraw from the world. That won’t make things better.

One thing we can do is to make our own position as solid as we can. When the gale winds blow and the riptides flow, will we be the ones swept away and crying for help? Or will we be the ones offering shelter to those we love?

As citizens, we have a duty to engage with our polity—to stand for civility, and justice, and conservation. All this is best done with a settled mind. And a settled mind is best achieved with a well-founded place to stand.

We moved the office!

After more than twenty years downtown, I’ve moved the office to South Austin. We’re now on Ben White Boulevard, just west of South First. I miss downtown, but I like the easy drive and free open parking. You should come see us some time.

You don’t have to come here to see us. One good change fosters another. I’m now offering video consultations and other ways that we can conduct business virtually. You can visit us virtually, but you can be sure that our work for you will be real. That won’t change.