Practical Real Estate Texas

Practical Insight and Commentary on Texas Commercial and Residential Real Estate Law

Adverse Possession & Inheritance: Why It’s Still Important to Probate a Will

Adverse Possession & Inheritance: Why It’s Still Important to Probate a Will

Late last year, a client walked into my office with a title issue. About 15 years ago, he and several siblings inherited family property. For the past decade, he’s been the only person responsible for the property. He paid the property taxes, completed the maintenance, and was even making significant improvements to the home on the property.

He wanted the property to remain in the family, but he saw this as something for his children – not the extended family. Unfortunately, title to the property was still in the name of the deceased. No one in the family had ever probated the estate.

A few years ago, he’d talked with another attorney about getting title in his name, but he really didn’t want to sue his family members. Now, there is a better way. And because I was on top of the recent statutory changes, I was able to provide this client with another option.

About the Law

On September 1, 2017, section 16.0265 of the Texas Civil Practice and Remedies Code became effective. This statute provides a means for co-tenant heirs—people who acquire ownership through intestate succession—to acquire full ownership of real property if they use the real property to the exclusion of the other heirs.

This statute deviates from the general rule that a co-tenant cannot adversely possess property from another co-tenant. It also provides another means for transferring title to real property following the death of someone without a will and when no estate administration was filed (something that is not uncommon).

How the Law Works

The new law applies when one acquires property through an inheritance with other heirs. Here’s an example: Say someone passes away without a will, and under Texas law you and others are the deceased’s heirs. Following the death, no one opens any probate proceeding with the court. As such, title the real property remains in the name of the deceased.

Now, the law provides that one or more co-tenant heirs may acquire the interests of the other heirs by adverse possession, if the following criteria are met for a continuous and uninterrupted 10-year period:

  • The possessing co-tenant heir or heirs must:
  • Hold the property in peaceable and exclusive possession;
  • Cultivate, use, or enjoy the property; and
  • Pay all property taxes on the property not later than two years after the date the taxes become due; and
  • No other co-tenant heir has:
  • Contributed to the property’s taxes or maintenance;
  • Challenged a possessing cotenant heir’s exclusive possession of the property;
  • Asserted any other claim against a possessing cotenant heir in connection with the property;
  • Acted to preserve their interest in the property by filing notice of their claimed interest in the deed records of the county in which the property is located; or
  • Entered into a written agreement with the possessing co-tenant heir under which the possessing co-tenant heir is allowed to possess the property but the other co-tenant heir does not forfeit that heir’s ownership interest.

If the above-criteria are met, then the statute provides that the co-tenant heir must:

  • File an affidavit of heirship in the real property records in the form required by the Texas Estates Code;
  • File an affidavit of heirship in the real property records that contains everything described in the statute;
  • Give written notice of the affidavits to the other co-tenant heirs by certified mail, return receipt requested, and
  • Run notice of the claim in the newspaper for four weeks after the filing of the affidavits.

Even after doing all of the above, title to the property will not vest in the co-tenant heir for another five years. At this point, there is a waiting game. If no one files a controverting affidavit or lawsuit within five years from the date the affidavits are filed, and no notice by a contesting co-tenant heir has been filed in the real property records, then title to the property will vest in the possessory co-tenant heir.

Potential Problems With Adverse Possession

While this statute provides a non-litigation means of obtaining title to real property, it does take a while. First, you must have had exclusive possession of the real property for 10 years to be eligible for this procedure. Then, even after filing the affidavits, you must wait another five years to obtain exclusive title to the property.

While the statute explicitly provides that a bank or other lender may rely on these affidavits in lending money after the five-year period, it also means that you must wait another five years before taking any further action on the property.

During this 15-year waiting period (the 10 years before you can file the affidavit plus the five years after filing), you are still subject to the claims of other co-tenants. Because everyone still jointly owns the property, each co-tenant has an equal right to possess the property.

Although you may have been paying the taxes and making improvements to the property, the other co-tenants still have the absolute right to force a sale to the property. If this were to happen, your best option would be to buy out your co-tenants, or agree to the sale and force the co-tenants to reimburse you for their share of the property taxes and improvements that you’ve made.

In short, although you’ve increased the value of the property and made sure that it wasn’t lost to tax foreclosure, your co-tenant heirs can benefit from your labor.

If a parent dies without a will, this statute will not guarantee that you (as opposed to a sibling or other heir) will ultimately obtain title to the real property. Even if your parent has expressed the desire for you to have the family home, without a probated will this is not guaranteed.

Without a probated will, the Texas Legislature determines who inherits using the Estates Code discussing intestate succession (i.e., how property is distributed when there is no will). In short, the legislature defines the heirs and forces them to share a little bit of everything. To ensure certainty in title to real property and that a decedent’s posthumous bequeaths are implemented, estate administration (meaning some form of a probate in the court system) is still necessary.

Final Thoughts

This statute attempts to solve the problem of quieting (i.e., resolving) title to real property when an estate administration is not completed. Unfortunately, all too often families do not open an administration to settle a loved one’s estate for whatever reason. As such, assets (including real property) are not transferred into the name of the person inheriting the property.

This means title becomes unclear and—as my client found out—property may be owned by more than one person because no one has taken the time to equitably divide the assets amongst the various heirs. One version of equitable division can involve splitting the assets so that everyone gets something of equal value…instead of everyone getting a smaller, undivided share of everything.

While this statute attempts to solve the problem of what happens when everyone shares everything, it does not encourage heirs to actually probate the estate and complete the administration. As such, there is still a lengthy wait time to actually resolve the title to real property. And with real property, the last thing anyone wants is uncertainty of title.

Cassie McGarvey

Cassie McGarvey

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