Who Owns this Land?

We have had this issue many times over the years.  Sometimes, it is known who owns the land, but nothing had been done to prove it.  Other time, families know that they own the land, but they have no idea in what percentages.  How does this problem happen?  Simply, it comes from a lack of planning.  People die without Wills, and no probate is ever done.  A second reason is that people refuse to probate a Will, even if it exists.  Generations pass without a probate process.

What do you do?  There are some options.  You have to research back to the source of the problem--who was the last person or persons to acquire record title to the property?  

Then, it's time to construct that family tree!   You have to construct the family tree and then apply the intestacy laws in existence at the time someone died.  Then you move your way forward.  Often, a genealogist is required to research records.  It's a fun process, but a time consuming one.  Time consumption means money, so make sure the property is worth the expense.

Each time you determine a deceased person's heirs, you have to consider how do you prove that to a title examiner at a title company, if you were to sell the property, even if you never "plan" to sell the property (that's another issue...if you have many owners of one property,  a sale is likely inevitable).  You can prove a deceased person's heirs via affidavits of heirship recorded in the deed records.  A second option is to determine the heirs in court in a determination of heirship proceeding authorized by the Estates Code.

The effort to determine who owns property could require multiple sets of affidavits or determinations of heirship. 

Another idea is a trespass to try title action to determine who owns property.  Under the Property Code a trespass to try title action is the method for determining ownership of property.  This approach should be used when there is a dispute over ownership of property.  

What if multiple owners are determined to own certain property, but the owners do not want to sell?  How do you know if your work on ownership determination is complete and adequate?  You could create your own sale by transferring the property to a limited liability company.  This transfer could close at a title company, with a value determined for the property's transfer, and with a title policy.  That idea will place the ownership work to the test.  Further, holding the property in an LLC will provide a management structure and protection from creditors.

Often, some parties will want to sell and some will not.  Some owners will often buy out other owners.  These sales could close a title company too, with a title policy.  This closing will put to the test the work to determine owners.  Sometimes, there has to be a forced sale, and a partition action is required.  One option is the Texas Uniform Partition of Heirs' Property Act of Chapter 23A of the Property Code.

Let's consider a real example.  Client is selling his 255 acre farm he inherited from dad.  A small portion of the property, 45.43 acres came from the Walker family, via one Walker heir who purportedly acquired all the Walker heirs' interests.  A husband and wife, the Walkers, owned a 545.16 acre farm, and the survivor died in the 1940's.  They had 12 children.  Neither Walker had a Will or estate probated.  One of the children, Walker Jr., died in 1960, leaving 11 children.  In 1975, the family wanted to divide up the 545.16 acres, and 11 of the 12 are still alive.  They knew the last record owners, the Walkers, their parents.  One child, Walker Jr., was already deceased, having died in 1960, so they had to make a family tree for him.  The family tree was known; he had 11 children.

Affidavits of Heirship were recorded, along with a partition deed.  Each of the living children received 545.16 acres/12, or 45.43 acres.  Walker Jr's 45.43 acres were divided among his 11 children, but there was a wrinkle!  Walker Jr.'s wife also received an equal share, instead of a life estate.  Normally, a surviving spouse would only inherit a 1/3 life estate in separate real property, but for some reason, she received an equal share, meaning 1/12 of the 45.43 acre tract.  Perhaps, the law in 1960 required the surviving spouse to get an equal share--again the law in 1960 was relevant, but the partition deed required her to get an equal share, so knowing the law then was not necessary in this real example.  Ms. Walker died in 1983.  Guess what?  Research regarding Ms. Walker showed that she also had either 2 or 3 children (perhaps one was a stepchild) from previous marriage(s) or relationship(s) or subsequent ones after Mr. Walker Jr.'s death in 1960.  Because these children were not Mr. Walker's, some additional heirs inherited her 1/12 share; the 1/12 share did not get inherited in total by Mr. Walker's 11 children.  If there were three other children, then her 1/12 got divided among all her children, 14 of them!  So that is her 1/12 * 1/14 for each child, or 1/168 for each, with 3/168 going to other children who did not sell to the Walker heir who sold to Client's dad.  So that is 3/168*45.43 acres out of 255 that is the problem!

If you were to track down these 2 or 3 additional children and prove ownership, you would have to complete an Affidavit of Heirship or a Determination of Heirship for Ms. Walker and then these 2 or 3 children if they were not living and then so on, if one of these heirs had died.  Another option: since one Walker heir had acquired all the other heirs' interests (other than these 2 or 3) and then sold the property to client, client could file a trespass to try title action to determine a superior title to the property, including via adverse possession, or a partition action to acquire these two or three heirs out of their interest.  That would have been much work!  Fortunately, in client's 255 acre property sale, only a portion of the property (45.43 acres) came from the Walker family, and seller was able to work with buyer and title company for an exception from the warranty for any property claimed by Ms. Walker's two or three other children.  In summary, the problems arose because two generations of heirs had no Wills or estates probated, and the problem was not discovered when client's dad acquired the property, because the sale occurred outside a title company!