The Importance of Having a Will

My standard answer when someone asks if they need a will is – “If you have kids, you need a will.”  What makes having kids a determining factor?

First, if you have minor children you want to have some say in who will take care of them in the unlikely event both you and your spouse pass away. Beyond that, you probably also want to designate who will be responsible for controlling the funds that will be used for their health, education and welfare until they are old enough to manage their own finances.  Without a valid will, both of these decisions will be left to the probate court.

Second, if you die without a will, the law designates how your property is distributed – and the probate court may need to be involved in the process. If you have no children, the law distributes your property to your spouse if you are married, or to your parents and their heirs if you are unmarried and childless.  If you are married and have children that are not also your current spouse’s children, all children and your current spouse inherit your property.

As an attorney who handles the closing of real estate transactions, I see files where someone died without a will on a weekly basis. I have seen scenarios in which an estranged child from a prior marriage has an interest in a property that was purchased with a new spouse, or one child refuses to cooperate when all others chip in for maintenance and taxes on property or want to sell property.  I have even seen several children agree to ignore the existence of another child when they provide an affidavit as to their siblings.

When a valid will is probated the cost is generally reasonable – in the neighborhood of a few thousand dollars if you hire an attorney to handle the probate for you.  When there is no will and the probate courts are involved in the guardianship of children or the distribution of property, the costs can be much higher because the court, not having the benefit of your intentions, will hire attorneys, appraisers, psychologists and others to determine what is in the best interest of your children and how best to dispose of your property.  These people are all paid out of your estate, and not necessarily interested in making sure that your property brings in top dollar.  The cost to your estate of not having a will often far exceed the cost of having one prepared.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call. Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713)529-8800.

 

 

Mobile Closing Options

The signing of documents for a real estate closing typically occurs at the office of the title company for several reasons.  First, it lessens the possibility of fraud or a later claim of fraud or incapacity in the execution of the documents because an employee of the title company actually witnesses the signing and notarizes any documents requiring notarization.  Second, many lenders, and state law in some circumstances, require that the documents be executed at the title company office.  Third, it is often more convenient for the parties (and expedites the funding of the transaction) because it eliminates the need to print or receive the documents, locate a notary to notarize any required documents and return the signed documents to the title company.  Title Companies do understand, however, that there will be situations where individuals cannot make it to the title company office and other arrangements need to be made.

One option that is available is an outside notary.  Because not all notaries are familiar with real estate documents, title companies typically require that any outside notary be approved by the title company.  The title company will vet the notary or notary service for their experience in handling real estate documents, as well as their errors.

 

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.

Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.

 

 

Using Power of Attorney in Real Estate Transactions

Title companies often receive requests to allow one or more parties to a real estate transaction to sign documents through the use of a Power of Attorney.  A Power of Attorney is a written document in which an individual, called the Principal, gives authority to another individual, called the Agent, to act on the Principal’s behalf.  In Texas, Power of Attorney used in a real estate transaction must be recorded in the Real Property Records of the county where the property is located.  The Power of Attorney may be in the form of a Statutory Durable Power of Attorney or a specific Power of Attorney.

The Statutory Durable Power of Attorney is set forth in the Texas Estates Code and a form of this document is typically easily located online.  The Statutory Durable Power of Attorney contains a laundry list of powers that may be given and requires the person completing the form to make a number of selections within the document itself.  Additionally, the Statutory Durable Power of Attorney does not terminate automatically when your transaction ends.  Because a Statutory Durable Power of Attorney can grant the Agent a multitude of powers and be valid until revoked, I typically recommend that persons considering using a Statutory Durable Power of Attorney consult and attorney prior to using the document.

The specific Power of Attorney is typically drafted by an attorney, for a fee, and is specific to the transaction being handled by the title company. Because it is drafted specifically for the transaction at hand, there are no other powers that can inadvertently be granted, and a termination date can be included in the document.

Because of the potential for fraud title companies are often wary of Powers of Attorney.  They will allow them, subject to approval of any lender involved; if the document meets the title company’s underwriting guidelines.  Regardless of which type of Power of Attorney is used, the title company will want to ratify the Power of Attorney by speaking to the Principal on the day the documents are being signed to verify that the Power of Attorney was actually signed by them and that Power of Attorney has not been revoked.  If the Principal is incapacitated at the time of the closing of the transaction, the title company may require verification from the Principal’s physician that the Principal was competent at the time the Power of Attorney was signed and verification from a caregiver that the Principal is still alive.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.

Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.