Recent legislative changes in Texas, specifically Senate Bill 1612 and amendments to the Estates Code, have brought significant adjustments that impact real estate deeds and the probate process. These changes are essential for professionals in real estate, law, and estate planning to understand and incorporate into their practice.
Changes to Real Estate Deed Recording Fees
Senate Bill 1612, effective January 1, 2024, has made a notable change in the recording fees for real estate deeds. The bill repealed a $1.00 document filing fee previously mandated by Local Government Code 291.008(d). As a result, the fee for recording instruments in the Official Public Records is now $25 for the first page, reduced from $26, and $4 for each additional page. This change affects various documents, including real estate deeds, Assumed Names/DBA’s, Foreclosure Notice postings, and Marriage Licenses. Counties such as Ellis, Cooke, Walker, and Waller have confirmed this new fee schedule.
Texas Estates Code Amendments: Impact on Real Estate
Trustee as Named Party to Instruments
Senate Bill 801, enacted in Texas, introduced a significant change in the Trust Code, specifically in Section 114.087. This change clarifies the role of the trustee in relation to trust instruments, particularly concerning the legal formalities of executing documents and carrying out transactions. Here are the key aspects of this amendment:
- Trustee as the Named Party: The bill clarifies that the trustee of a trust is to be considered the named party to any instrument that names the trust itself as a party. This means that for legal and transactional purposes, the trustee represents the trust in various dealings and document executions.
- Retroactive Application: This change is retrospective, meaning it applies not only to future transactions and instruments but also to those executed before the enactment of the bill. Therefore, instruments executed at any time before, on, or after September 1, 2023, fall under this provision.
- Legal Implications: This change has important legal implications. It simplifies and clarifies the execution of documents and transactions involving trusts, as it unequivocally identifies the trustee as the party with the legal authority to act on behalf of the trust. This can help to avoid confusion or legal disputes about the validity of documents or transactions involving trusts.
- Practical Impact: For those involved in trust administration, estate planning, and related legal practices, this change emphasizes the importance of correctly identifying the trustee in trust-related instruments. It also underscores the necessity for trustees to be aware of their expanded responsibilities and the legal authority they hold.
- Enhanced Clarity in Transactions: This amendment enhances clarity in transactions involving trusts, particularly in real estate and other asset management contexts. It streamlines the process by reducing ambiguity about who is authorized to act on behalf of the trust.
This legislative change underscores the importance of accurate documentation and representation in trust-related matters and has a significant impact on trust administration and related legal practices in Texas. Legal professionals, trustees, and parties engaged in transactions involving trusts should familiarize themselves with this change to ensure compliance and proper execution of trust-related instruments.
For more detailed information and guidance on this legislative change, it is advisable to consult with legal professionals specializing in trust and estate law.
Certification of Trust
The certification of trust, as updated by recent legislation in Texas, notably enhances the reliability and security of trust-related real estate transactions. This legislative update, which impacts trust law in Texas, has several key components:
- Presumption of Correct Identification: A certification of trust that is recorded in the real property records is now presumed to accurately identify both the trust and the trustee. This means that when a certification of trust is filed with the real property records, it is generally accepted that the information about the trust and trustee in the document is correct.
- Implications for Transactions: This presumption extends to good faith purchasers or lenders. In practical terms, this means that if a person or entity is purchasing property from a trust or lending money to a trust and relies on the certification of trust in good faith, they can assume the information in the certification is correct. This reduces the risk for purchasers and lenders and streamlines transactions involving trusts.
- Increased Security and Reliability: This update provides an added layer of security and reliability in transactions involving trusts. Parties engaging in such transactions can have greater confidence in the validity of the trust and the authority of the trustee, based on the certified information.
- Legal Framework: This change is part of a broader legal framework that governs trusts and real estate transactions in Texas. It reflects an effort to simplify and secure transactions involving trusts, particularly in the context of real estate.
For real estate professionals, lenders, and parties engaged in trust-related transactions, understanding this change is crucial. It impacts how trusts are used in real estate dealings and offers a more streamlined and secure process for verifying trust information.
Legal professionals and those involved in trust administration or real estate transactions should review the specific legislative text and consult with legal experts to fully understand the implications and applications of this update.
Adjustments to Creditor Claims and Community Property
Senate Bill 1373 amends Estates Code Section 101.052 to define the liabilities of community property upon the death of a spouse. This amendment could have implications for real estate held as community property, especially in probate proceedings.
The key amendments to Section 101.052 are as follows:
- Liability of Community Property Managed by a Spouse: Community property that was under the sole or joint management, control, and disposition of the spouses during their marriage continues to be subject to the liabilities of the managing spouse upon the death of either spouse.
- Liability of Surviving Spouse’s Share: The undivided one-half interest in community property that was under the sole management of the deceased spouse is subject to the liabilities of the surviving spouse upon the death of the deceased spouse.
- Passage of Deceased Spouse’s Share: The undivided one-half interest that the deceased spouse owned in community property, which was under the sole management of the surviving spouse during the marriage, passes to the deceased spouse’s heirs or devisees. This passage comes with the liabilities that were enforceable against the deceased spouse.
These revisions aim to clarify the management and liability aspects of community property in the context of a spouse’s death. This clarity is crucial as it impacts how debts and obligations are settled during the probate process and how property is distributed among heirs. For instance, the property solely managed by the deceased spouse can now be subjected to the liabilities of the surviving spouse. This change could affect decisions in estate planning, especially for couples with significant community property assets.
These changes are reflective of an effort to streamline and update the probate process in Texas, making it more equitable and reflective of modern familial and property arrangements.
Affidavit of Heirship in Heirship Proceedings
The changes to the Texas Estates Code, specifically regarding the use of affidavits of heirship in heirship proceedings, significantly streamline the process of determining heirs, particularly for real estate properties. This amendment, effective from January 1, 2014, allows for a more efficient approach in situations where a decedent leaves behind real property.
Under Section 203.001 of the Estates Code, a court can now receive a statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent as prima facie evidence in a proceeding to declare heirship or a suit involving title to property. This statement can be contained in an affidavit or other legally executed instrument and is acknowledged or sworn to before an officer authorized to take acknowledgments or oaths. For the affidavit to be used as prima facie evidence, it must have been recorded for five years or more in the deed records of a county in Texas where the property is located or where the decedent was domiciled or had a fixed place of residence at the time of death.
An affidavit of heirship is typically utilized when the decedent did not leave a will or the will was not probated within four years of the decedent’s death. The affidavit must be signed and sworn to before a notary public by someone who knew the decedent and their family history. It should be filed in the real property records in the county where the land is located.
These adjustments in the Estates Code provide a mechanism to simplify the transfer of the decedent’s interest in real property to their heirs, especially when there is no will or the will is not probated in time. This procedural simplification can be particularly beneficial in circumventing lengthy and potentially complicated probate processes.
Unnotarized Declarations for Oaths of Personal Representatives
The recent changes in the Texas Estates Code, specifically in Section 305.051, have modified the requirements for oaths of personal representatives, such as executors or administrators of estates. Previously, these oaths needed to be sworn before a notary or another officer authorized to take oaths. This requirement has been updated to allow for more flexibility in the process.
Under the amended law, personal representatives now have two options: they can either take and subscribe to an oath as previously required or make and sign a declaration under penalty of perjury. This declaration is a simpler process and doesn’t require notarization. It includes basic identification information of the representative, a declaration that the writing offered for probate is the last will of the testator (as far as the representative knows or believes), and a solemn declaration to well and truly perform all the duties of the executor or administrator for the estate.
This amendment, which became effective September 1, 2023, simplifies the process and reduces the formalities involved in the appointment of executors or administrators, especially useful in situations where notarization might pose a challenge or delay. It’s a part of a broader trend towards streamlining legal procedures and making them more accessible.
For a detailed review of the new amendment and its implications, you can refer to the Texas Estates Code Section 305.051 as amended in 2023.
Reimbursement Claims Between Marital Estates
The recent changes to Texas law, specifically through House Bill 1547, significantly impact reimbursement claims between marital estates, especially in the context of divorces and involving real estate. These changes, effective September 1, 2023, aim to simplify and bring fairness to the process of property division during divorces.
Under the new law, the concepts of “benefited estate” and “conferring estate” have been introduced. A “benefited estate” refers to a marital estate that receives a benefit from another marital estate, while a “conferring estate” is one that confers a benefit on another marital estate.
The law simplifies the definition of a claim for reimbursement. It now states that a claim exists when one or both spouses use property from one marital estate to confer a benefit on the property of another marital estate, leading to potential unjust enrichment of the benefited estate if not repaid. This general statement replaces the specific examples of reimbursement claims outlined in the old law, potentially broadening what might be considered a claim for reimbursement.
To successfully claim reimbursement, the law requires the following to be proved:
- Property from one marital estate was used to confer a benefit on another marital estate.
- The value of the benefit conferred.
- That unjust enrichment of the benefited estate will occur if it is not required to reimburse the conferring estate.
The law also provides guidelines on when the property of a marital estate can be considered as conferring a benefit on another marital estate. These include instances where property from the conferring estate is used to pay debts or expenses, make improvements on real property of the benefited estate, or when time, toil, talent, or effort is used to enhance the value of a spouse’s separate estate beyond what was necessary for its management and preservation.
The determination of whether unjust enrichment will occur and the resolution of reimbursement claims are left to the court’s discretion, using equitable principles. This includes the principle that claims for reimbursement may be offset against each other if deemed appropriate by the court.
These changes represent a substantial shift in how reimbursement claims in marital estates, particularly involving real estate, are handled in Texas. They reflect a move towards a more equitable and less rigid system, allowing for a broader interpretation and application of what constitutes a valid reimbursement claim in the context of marital property division.
For a detailed understanding of these changes, it is advisable to consult with legal professionals who are well-versed in Texas family law and property division.
Conclusion:
The legislative changes in Texas’ Senate Bill 1612 and the Estates Code amendments have a profound impact on real estate deed recording and the probate process involving real estate. These changes aim to simplify procedures, reduce costs, and clarify legal standings, particularly in trust and estate matters related to real estate. Professionals in the relevant fields should update their practices to align with these legislative changes.
References:
Senate Bill 1612 details and impacts: Ellis County Official Website, Cooke County Official Website, Walker County Official Website, Waller County Official Website.
Estates Code amendments and analysis: Winstead PC, Silberman Law Firm, PLLC, Karisch Jonas Law.