ANOTHER DEAD SELLER? HOW TO KEEP YOUR DEAL ALIVE

ANOTHER DEAD SELLER?

HOW TO KEEP YOUR DEAL ALIVE

JEAN E. BAILEY

Vice President and Underwriting Counsel

RATTIKIN TITLE COMPANY

9675 Camp Bowie Blvd. West

Fort Worth, Texas 76116

817-334-9603

[email protected]

SUZANNE FROSSARD

M. SUZANNE FROSSARD, P.C.

3709 S. University Drive


817-924-3211

[email protected]

THE 21ST ANNUAL ROBERT C. SNEED

TEXAS LAND TITLE INSTITUTE Dec 1-2, 2011

San Antonio, Texas

mailto:[email protected]

mailto:[email protected]

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. DISTINGUISHING INTESTACY FROM TESTACY.......................................................1

III. WHAT WILL? DO WE HAVE TO PROBATE A WILL? ...............................................1

A. Intestate Succession .................................................................................................1 B. Affidavit of Heirship ................................................................................................2 C. Small Estate Affidavit ..............................................................................................5 D. Judicial Determination of Heirship ..........................................................................6

IV. WHERE THERE’S A WILL, THERE’S A WAY – EVEN IF DECEDENT DIED

OVER FOUR YEARS AGO ...............................................................................................9

A. Probate Proceedings Must be Initiated Within Four Years. ....................................9

B. Muniment of Title. ...................................................................................................9

V. PERSONAL REPRESENTATIVES AND THE AWESOME POWER OF SALE .........11 A. Powers of Representatives .....................................................................................11 B. Power of Sale Granted in the Will .........................................................................11

C. Power of Sale Necessary to Pay Expenses ............................................................12 D. Power of Sale by Agreement. ................................................................................12

VI. WHAT EXECUTOR? THAT EXECUTOR DIED YEARS AGO! ..................................14 A. TPC § 145(d)- Appointment of Independent Administrator..................................14 B. TPC § 220 Appointment of Successor Representative ..........................................15

C. 2011 Legislative Changes Impacting Executors ....................................................16

VII. BUT ALL THE HEIRS AGREE! WHY DOES THE DEPENDENT

ADMINISTRATOR HAVE TO OBTAIN COURT APPROVAL TO SELL THE

REAL PROPERTY? ..........................................................................................................17

A. Property Subject to Sale. ........................................................................................17 B. Four-Step Process for Sale: All Steps Completed Before Closing. .......................17

VIII. THE SELLER IS A MINOR .............................................................................................19

IX. CONCLUSION ..................................................................................................................20

APPENDIX A Intestate Succession in Texas of Real Property

APPENDIX B-1 Affidavit of Facts Concerning the Identity of Heirs



APPENDIX C Application to Determine and Declare Heirship

APPENDIX D Judgment Declaring Heirship

APPENDIX E Application for Probate of Will as a Muniment of Title

APPENDIX F Order Admitting Will to Probate as a Muniment of Title

APPENDIX G Notice Under Probate Code Section 128B

APPENDIX H Affidavit and Waiver of Notice Under Probate Code Section 128B

APPENDIX I Texas Probate Code Sections 145A, 145B, and 145C

APPENDIX J Application for Letters of Independent Administration

Pursuant to §145(c)(or 145(d) or 145(e)), Texas Probate Code

APPENDIX K-1 Application for Appointment of Successor Independent Executrix

and Issuance of New Letters Testamentary in Accordance

with § 220 of the Texas Probate Code

APPENDIX K-2 Proof of Need for Continuation of Administration for Estate

APPENDIX K-3 Appointment of Resident Agent

APPENDIX K-4 Oath of Successor Independent Executrix

APPENDIX K-5 Order Granting Application for Appointment of Successor Independent

Executrix and Issuance of New Letters Testamentary in Accordance

with § 220 of the Texas Probate Code

APPENDIX L Application for Court-Approved Sale of Real Property

APPENDIX M Order Permitting Sale of Real Property

APPENDIX N Report of Sale of Real Property

APPENDIX O Order Confirming Sale of Real Property

APPENDIX P Application for § 889 Sale of Real Property of a Minor by an

Adoptive Parent

1

ANOTHER DEAD SELLER? HOW TO KEEP YOUR DEAL ALIVE

I. INTRODUCTION

Real estate and title professionals cannot ignore the impact that the death of an individual

holding title to real property has on a closing. In fact, one of the most common issues in a title

search is vesting of title following the death of the record owner. The death of a property owner

alone should not cause the untimely death of the deal.

This paper is not intended to be an exhaustive treatise on the Texas Probate Code. There

are many reliable resources which cannot be rivaled. Instead, the goal of this paper is to provide

a guide of practical solutions to the common problems encountered by the real estate

professional in Texas when the owner of real property is deceased.

Many times, a solution offered by a probate practitioner unfamiliar with the intricacies of

the title industry might comply technically with the probate code but in practicality might not be

adequate for title insurance underwriters. Other times, the same probate attorney might hesitate

to offer a solution when the solution actually might be acceptable to a title insurance underwriter.

This paper will explore these discrepancies and attempt to provide some useful and practical

solutions to keep the deal alive when a deceased record title owner is involved.

II. DISTINGUISHING INTESTACY FROM TESTACY

When a person dies and does not leave a valid will, the person dies “intestate.” As of the

date of death of a decedent dying intestate, property passes according to the laws of descent and

distribution found in the Texas Probate Code (hereinafter “TPC”) §§ 38- 47A.

When a person dies leaving a will, and that will is probated, the person dies “testate.”

Upon probate of the will, the decedent’s property passes according to the terms of the decedent’s

will, but date of ownership is as of the decedent’s date of death. If a person dies with a will, but

the will is not probated, property passes as if the person died intestate. If the will does not fully

devise or bequeath all of decedent’s property, such un-devised or un-bequeathed property will

vest in the testator’s heirs at law. TPC § 37. This may occur if the will does not include a

residuary clause.

III. WHAT WILL? DO WE HAVE TO PROBATE A WILL?

If the decedent does not have a will, or if the family and/or heirs or devisees choose not

to probate the will, title passes through intestate succession. In other words, title passes to the

heirs at law as outlined in The Texas Probate Code. In the case of intestacy, Texas statutes

provide three options to evidence the passage of title to the decedent’s real property: (1) an

Affidavit of Heirship; (2) a Small Estate Affidavit; and (3) a Determination of Heirship.

A. Intestate Succession

Determining who inherits from an intestate decedent is not as simple as one might think.

It depends on (1) whether the decedent was married; (2) the type of property interest owned (i.e.

community v. separate; real v. personal); and (3) the date of death. TPC §§ 38, 45. Title to all

2

property vests immediately upon death, so the heirs are determined by the law in force on the

date of death.

Included at Appendix “A” is a chart of intestate succession in Texas reflecting both

current and prior law applicable to community and separate real property in various

circumstances.

Effective September 1, 1993, Texas Probate Code § 45 provides that the community

property estate of one spouse passes to the surviving spouse if: (1) no child or other descendant

of the deceased spouse survives the deceased spouse; or (2) all surviving children and

descendants of the deceased spouse are also children or descendants of the surviving spouse. If a

decedent died before September 1, 1993, the prior law of community property applies: all of the

decedent's share of the community property passed to the children of the decedent or their

descendants.

As a practical matter, title insurance underwriters will usually take the most conservative

stance on whether property is community or separate, subject, of course, to satisfactory proof to

the contrary. Title insurance underwriters will try to make sure that the interests of all possible

owners are captured to avoid the most risk. The characterization of assets, whether community

or separate, is often an intricate process and that characterization may be revised as a result of a

premarital or marital agreement.

B. Affidavit of Heirship

The most cost effective and most commonly utilized tool in the title industry to determine

the heirs of a decedent in the case of intestacy, and to evidence the passage of title to real

property to those heirs, is the Affidavit of Heirship.

1. Generally. The procedure for an Affidavit of Heirship is found under TPC § 52.

In general the affidavit is a statement of facts concerning a family history, genealogy, marital

status and/or the identity of heirs of a decedent, executed and sworn to, and placed of record. It

is important to remember that liens against the heirs, as of the date of death, may and often do

attach to any real property inherited from the decedent when the property passes intestate.

2. The Form. A form for the Affidavit of Heirship is provided in TPC § 52A. The

form is not mandatory; and as a practical matter, title insurance underwriters will rarely insure

unless far more detail is provided in the Affidavit of Heirship than suggested by statute because

of the risk inherent to the procedure. The Affidavit of Heirship does not obtain a presumption of

validity until it has been of public record for five or more years; any errors or omissions in such

statement do not affect the rights of any omitted heir or creditor. The Affidavit of Heirship is

truly a fact finding and risk management tool.

3. Underwriter Requirements. Because the Affidavit of Heirship is inexpensive and

practical, title insurance underwriters will generally accept it to determine the heirs at law of a

deceased property owner if certain requirements are met. Examples of Affidavits of Heirship

applicable to varying situations are included at Appendix “B.”

3

Affiants - The affidavit should be executed by two (2) credible, disinterested persons as

well as one (1) interested person, usually a surviving spouse or other family member of

the deceased. A ‘disinterested person’ is an individual that does not inherit from the

deceased. The necessary information is normally obtained from a family member of the

deceased, but only one family member should execute the Affidavit. Although a

daughter-in-law or son-in-law does not technically inherit from the deceased, arguably

they are not truly disinterested and underwriters generally will not accept either as an

Affiant.

Time - The two disinterested persons must have known the deceased for at least ten (10)

years prior to the date of death of the deceased. In the event the Affidavit relates to more

than one deceased person, such as a husband and wife, or a parent and child, each

disinterested person must have been acquainted with each deceased person for at least ten

(10) years prior to such person’s date of death. In other words, if the Affidavit is for a

husband who died fifteen (15) years ago, and a wife that died recently, the disinterested

persons executing the Affidavit must have know the couple for at least twenty-five (25)

years in order to meet the requirement of having known the husband for at least ten (10)

years prior to his date of death.

Relationship - The relationship of each disinterested person as well as the time period of

their acquaintance with the deceased should be included in the Affidavit.

Details - Affidavit should set forth certain details relating to the deceased, such as date

and place of birth and death; number of marriages, with date and name of each spouse

and how and where each marriage occurred and terminated; the full name, birth date,

place of birth, name of other parent and, status of each child of the deceased; if any child

of the deceased has died, then information should be included as to place and date of the

child’s death and whether the deceased child has descendants. If such deceased child had

descendants, then all the same information is required for such deceased child as was

required for the decedent. Much of the above information is not required in the same

degree of detail by either the statutory form or the State Bar form.

Will - If the deceased had a will, a statement should be included as to whether an

administration of the estate or probate of the will has been accomplished or is pending or

contemplated. The original or a copy of the will and all codicils should be attached to the

Affidavit. Note, if an administration or probate proceeding is pending, a title insurance

underwriter will not rely upon an Affidavit of Heirship. Instead, a determination of heirs

should be made by the court in the pending proceeding.

Devisees to Sign - If the deceased had a will, title insurance underwriters usually require

that all devisees named in the will that are not also an heir at law of the deceased be

included in title to the property and join in the conveyance. Title insurance underwriters

want to avoid a future claim from a subsequent probate of deceased’s will by any such

devisee, which would cut the heirs at law out of title.

4

4. Adoption and Adoption by Estoppel. One issue that is often overlooked in an

Affidavit of Heirship is that of the adopted persons. This can be an issue if the deceased is

adopted, if the deceased adopted a child, or if the deceased gave a child up for adoption.

(a) Adoption. In Texas, an adopted child is regarded as the child of the

parent(s) by adoption, the same as if such child was the natural child of such parent(s) by

adoption. The adopted child inherits from the parent(s) by adoption, and the parents by

adoption and their kin have the right to inherit from the adopted child, the same as a

natural child. TPC § 40. More importantly, not only does an adopted child and its

descendents inherit from and through its adopted parents, but also from its biological

parents. Note that natural parents have no right to inherit from or through the adopted

child, but the adopted child does inherit from and through his/her natural parents. In

addition, an individual adopted as an adult does not inherit from his/her biological parent,

nor do such biological parents inherit from the adopted adult. TPC § 40; Texas Family

Code § 162.50(e).

(b) Adoption by Estoppel (Equitable Adoption). Texas law recognizes an

informal adoption, also known as adoption by estoppel or equitable adoption. Adoption

by estoppel occurs when a child is brought into the home and treated as an adopted child

without the benefit of court adoption proceedings. When a non-adopted child was living

with the decedent and the decedent treated the child as his/her own, a question can arise

as to whether that child inherits. See Heien v. Crabtree, 369 S.W. 2d 28 (Tex. 1963). A

child adopted by estoppel may have the right to inherit from his “adoptive” parents. This

often happens when the decedent raised a grandchild in the decedent’s home.

(c) Impact on Affidavit of Heirship. It is important to identify adoptions and

adoptions by estoppel in an Affidavit of Heirship when expecting a title insurance

company to rely on the Affidavit and insure the conveyance.

If the deceased is adopted, this fact should merely be addressed in the Affidavit of

Heirship as an additional fact, following the date and place of birth. The

biological parents or siblings of the deceased may not inherit from the deceased.

If the deceased adopted a child, the Affidavit should address this and reflect if

such adoption was formal or informal. If by formal adoption, the information

should be included in the Affidavit when listing the children of the deceased,

since an adopted child inherits in the same manner as the natural born child. The

date and place of the adoption should be included with the date and place of birth

and name of the other parent, if any.

If the deceased raised a child in his or her home without a formal adoption, the

child should be included in the Affidavit as an heir and join in the conveyance.

Many title insurance underwriters and/or title companies will also require the

heirs to execute a distribution of proceeds agreement in order to eliminate any

question between the heirs as to ownership interest or distribution of proceeds.

5

If the deceased gave up a child for adoption, this information must also be

included in the Affidavit of Heirship because an adopted child can inherit from

his biological parents as well as from his adopted parents. In the past, adoptions

were not usually discussed and most adoptions were closed, leaving no possibility

to trace a child placed for adoption.As times have changed, the topic is not as

taboo and is discussed more openly. Today, open adoptions are becoming more

common, making it possible to actually identify the adoptee. When requesting a

title company to rely on an Affidavit of Heirship when the identity of the adoptee

is known, the adoptee information must be included in such Affidavit, with

information regarding not only the birth but the adoption as well. A title company

will require the adoptee to join in the conveyance because under the law, he/she is

entitled to a full share of the proceeds. This highlights the issues involved when

the identity of the adoptee is unknown – an interest in the property may be un-

conveyed, thereby requiring a court determination of the heirs and a portion of the

proceeds placed with the registry of the court. With social mores having changed

with regard to adoptions, it may be time for the Texas legislature to address the

issue of adoptees inheriting through their biological parents.

5. Timing. Although it is not the standard practice, at least one title insurance

underwriter will not rely upon or accept an Affidavit of Heirship within two years of the date of

death of the record owner. This is due to the high risk involved in reliance upon a statement of

facts from an interested party. It is unclear to the authors why two years is the magic number

since an administration may be opened for four years following the date of death and a will may

be probated without an administration at any time, so long as one can overcome the requirements

in the Texas Probate Code. However, this requirement forces a probate proceeding of some sort

in order to convey real property within two years of the date of death of the property owner.

While this will lessen the risk on the title company insuring the transaction, it seems to place a

heavy burden on the heirs of the deceased owner.

C. Small Estate Affidavit

1. Generally. The Texas Probate Code provides another option to evidence the

passage of title to decedent’s real property: the Small Estate Affidavit. TPC §§ 137 – 143. The

Small Estate Affidavit is available when a deceased’s estate, excluding homestead, does not

exceed $50,000.00; no formal administration of the estate is pending; and at least thirty days

have lapsed since the date of death. No personal representative is appointed and an Affidavit of

Heirship is filed with the clerk of the proper court for approval. This Affidavit must be made by

two disinterested witnesses, by all distributes having legal capacity, and by the guardian or next

of kin of any minor or other distributee not having capacity to sign. The Affidavit is to set out

the assets and liabilities of the small estate as well as the names and addresses of all distributees.

In addition, information as to the family history relating to heirship is to be included. TPC §

137.

2. Passes Homestead Property Only. A Small Estate Affidavit has limitations in use

to evidence the chain of title. It only passes title to the homestead property of the decedent; it

does not transfer title to any other real property of the Deceased. To pass title, the Small Estate

Affidavit must, following approval by the court, be recorded in the deed records of the county in

6

which said homestead property is located. Furthermore, although this recorded Affidavit may be

relied upon by a bona fide purchaser for value without actual or constructive notice of an

undisclosed heir in taking title to property free of any claims of such undisclosed heir; such bona

fide purchaser takes title subject to any claims of creditors of the Deceased. TPC § 137(c).

3. Inherent Risks. On the surface, these provisions appear to provide for a shortcut

heirship determination upon which purchasers and title insurers may comfortably rely. However,

there are inherent risks in relying upon a Small Estate Affidavit when insuring a conveyance.

most Small Estate Affidavits do not meet the requirements of an Heirship Affidavit as set

out above. Because there is no statutory requirement that the disinterested witnesses have

known the deceased for any length of time, they have usually known the deceased for less

than ten (10) years.

the family or heirship information is usually not as comprehensive as needed for title

insurance purposes.

only property which was the homestead of the deceased is transferred by a Small Estate

Affidavit. Homestead property is not always easy to determine, especially after the

owner’s death.

For these reasons, title insurance underwriters rarely rely upon small estate proceedings to

convey title, unless, in those rare instances, the Small Estate Affidavit meets all the title

insurance underwriter’s requirements of an Affidavit of Heirship.

D. Judicial Determination of Heirship

If a decedent dies intestate, the Texas Probate Code offers a third alternative to determine

a decedent’s heirs at law and to evidence the passage of title to decedent’s real property: a

Determination of Heirship proceeding. TPC §§ 48, 49, 50, 53, 54, 55, 56. This alternative is

available regardless of the size, nature, extent or value of the probate estate. The Determination

of Heirship proceeding can be a stand-alone proceeding if there is no apparent need for formal

administration of the decedent’s estate. TPC § 55(c). Otherwise, a Determination of Heirship

can be a motion filed within a formal administration. Either way, because this proceeding

involves a judicial determination, it is a lengthier process and is more expensive than other

alternatives. Title insurance underwriters certainly would rather rely on Judicial Determinations

of Heirships rather than the alternatives because of the decreased risk, but Determinations of

Hierships are rarely seen outside of a formal administration of an estate.

1. Generally. An heir, administrator, secured creditor, guardian or other interested

party may initiate an action to declare heirship by: (i) filing an application to determine heirship;

(ii) having citation issued; and (iii) scheduling a hearing no sooner than the first Monday

following the passage of 10 days after citation is completed. TPC § 49 A judgment determining

the heirs of a decedent is part of the county’s probate records and, therefore, part of the

muniment records and constitutes the link in the chain of title from the decedent into the heirs at

law. TPC § 54. It is helpful but not necessary to file certified copies of the judgment in the deed

records of all counties in which decedent’s real property is located. TPC § 56. Filing the

judgment in the real property records constitutes constructive notice and allows for an

7

expeditiously insured title transfer by a title company. A sample Application to Determine and

Declare Heirship is included at Appendix “C”.

2. Finding of No Administration. When the heirs at law can establish, prior to the

opening of formal administration, that there are no unpaid debts owed by the estate and there is

no other reason for formal administration of the estate, (i.e. heirs advance their own funds, or

have access to funds, to pay funeral expenses, expenses of last illness, etc.), the court can make a

finding that there is no necessity for administration. There is then no need for the appointment of

a personal representative of the estate and no letters of administration issue. The recital in the

order that no administration is necessary is the authority for all persons to deal directly with the

heirs on all matters relating to the real property. The Judgment Declaring Heirship included at

Appendix “D” contains a finding that there is no necessity for administration.

3. Venue. Venue is proper in the county of the decedent’s domicile or if the

decedent had no domicile or fixed place of residence in Texas, and died outside of Texas, then in

any county in Texas where the decedent’s nearest of kin resides. TPC § 6 C.

4. Parties. Remember that in order to gain the protection against the claims of

unknown creditors as well as protection against the claims of unknown heirs, all heirs and

beneficiaries must be joined in the proceeding. The heirs and beneficiaries must either (i) be

made a party to the application; (ii) be properly served by citation; (iii) file waivers of service of

citation; or (iv) file an answer to the application. If an heir or beneficiary cannot be located, then

a citation by publication should be issued, directed to the heirs whose names and whereabouts

are unknown. In addition, an attorney ad litem should be appointed to represent such heirs. The

appointment of the attorney ad litem for unknown heirs is mandatory. TPC § 53(c). Texas

Probate Code § 50 permits service of citation on known heirs who are twelve and older by

certified mail, but caution should be used and every effort should be made to provide everyone

with actual notice of the proceeding.

5. Practical Application. There several situations in which a Judicial Determination

of Heirship is helpful to the real estate and title professionals in order to determine the heirs at

law and evidence passage of title to real property:

When all of the heirs of the decedent cannot be identified. If the decedent was not

married at the time of death, and left no children, and no siblings, and no surviving

parents, or one of the parents cannot be located, the heirs at law are the paternal kindred

and maternal kindred. Tracing distant relatives is not always easy, and can prove at times

to be as time consuming and expensive as a Judicial Determination of Heirship and Order

of No Administration. Unfortunately, this seems to occur more frequently in the

underprivileged parts of cities, where property values are low and means to pay for the

remedy are scarce.

When Title Insurance Underwriting Requirements for an Affidavit of Heirship cannot be

met. Because title insurance underwriters require additional information in an Affidavit

of Heirship due to the inherent risk of the tool, sometimes those requirements cannot be

met. For example, if it is not possible to locate two affiants that knew the Decent more

8

than ten (10) years prior to the date of death, a title insurance underwriter might not be

willing to take the risk and insure without a judicial determination of the heirs.

When a Will has been offered for Probate but the Will fails to Dispose of all of the

Property. The best example of this is when there is no residuary clause in the will that is

offered for Probate. Once probate proceedings have begun, it is unlikely that a title

insurance underwriter will accept an Affidavit of Heirship to identify the possible

devisees under the will. Likewise, you should not rely solely on the power of sale in the

will when insuring the transaction without identifying the devisees and conducting a

search on each devisee for possible liens that will attach to the devisee’s interest in the

real property.

Decedent died with a will, but the will fails to identify all of the devisees. Again, we are

dealing with a poorly written will, one that might refer to the devisees as “all of my

children”, “my grandchildren”, or “my heirs at law” without specifically identifying those

individuals. When the Will is probated, but the devisees named therein are not clearly

identifiable, most title insurance underwriters will require a determination of heirship

within that existing probate cause of action.

6. Other Applications. The Judicial Determination of Heirship is also available in

other situations:

Decedent died intestate, and there is need for administration of the estate. As of

September 1, 2011, a proceeding to declare heirship is statutorily required in an intestate

administration, although as a practical matter, many judges have been requiring it for

some time. TPC § 145. In situations where there are unpaid debts of the estate or some

other reason for formal administration, a Judicial Determination of Heirship cannot be

avoided.

More than four years have lapsed since decedent’s death. If more than four years have

lapsed since the date of decedent’s death, formal administration of the estate normally

cannot be opened. TPC § 74. However, the Texas Probate Code does not set limits on

initiating a proceeding to declare heirship. If this option is chosen, note that there are

some cases that suggest that the four-year statue of limitations of the Texas Civil Practice

and Remedies Code is applicable. See Smith v. Little, 903 S.W.2d 780 Tex. App.—Dalls

1995), Aff’d in part, rev’d in part on other grounds 943 S.W.2d 414 (Tex. 1997), and

Cantu v. Sapenter, 937 S.W.2d 550 (Tex. App.—San Antonio 1996, writ denied). York

v. Flowers, 872 S.W.2d 13 (Tex. App.—San Antonio 1994, writ denied) held that the

four-year statute does not apply to the heirs’ action to recover real property. Again, most

title insurance underwriters will rely on an Affidavit of Heirship for conveyance of real

property, eliminating the need for a judicial determination in many instances, unless there

is another reason for the determination, such as the need to transfer personal property.

9

IV. WHERE THERE’S A WILL, THERE’S A WAY – EVEN IF DECEDENT DIED

OVER FOUR YEARS AGO

If a decedent leaves a will but four years have lapsed since the date of decedent’s death, a

full probate proceeding is not available. Of course, title companies would accept an Affidavit of

Heirship in proper form to evidence the passage of title to the heirs at law. But what if the

distributees under the will are not the same as the heirs at law? Take for example a decedent

who was married at the time of his death and had children from a prior marriage. If decedent

leaves everything to his wife in the will, but she fails to probate the will, thinking, “everything is

mine anyway,” the heirs at law are the owners of one-half of the community homestead. Years

later, when the widow attempts to sell the homestead property, the children will be required to

join in the sale of the property unless the parties can work out an amicable solution. Otherwise,

the will must be offered for probate for documentary evidence of title only, so long as the

applicant is not in default in failing to probate the will the required time period.

A. Probate Proceedings Must be Initiated Within Four Years.

All applications for letters testamentary or administration must be filed within four years

after the decedent’s date of death, except where administration is necessary in order to receive

funds or other property due to the estate. TPC § 74. If the applicant provides the court with

proof that the applicant is not in default in failing to present the will for probate within the four-

year period, the will can be admitted but in no case shall letters testamentary be issued. TPC §

73(a). In this case, “default” means a failure due to the absence of reasonable diligence on the

part of the will proponent. See Brown v. Byrd, 512 S.W.2d 753 (Tex. Civ. App.—Tyler 1974, no

writ). If the applicant can meet this burden of proof, the will may be admitted to probate only as

a muniment of title. TPC § 73(a).

B. Muniment of Title.

1. Generally. A decedent’s will can be offered for probate as a muniment of title

when there are no unpaid debts owed by the decedent’s estate, except for those that are secured

by real property, or no other reason for administration of the estate. The court can make a

finding that there is no need for administration of the estate and admit the will to probate as a

muniment of title only. The will is probated just as any other will is probated, but the court does

not appoint an executor or administrator, and there is no administration of the estate, i.e. no

notice to creditors, inventory, etc. If needed, and on proper application, the court may include a

declaratory judgment construing the will or determining the identities of the persons entitled to

receive property and their shares of the estate. TPC § 89C(b). 2011 legislative changes make it

clear that TPC § 128a Notices do not apply to muniments of title.

Probate of a will as a muniment of title is the fastest proceeding through which to transfer

ownership of the estate to the beneficiaries, with vesting of such title relating back to the date of

death of the decedent. A sample Application for Probate of Will as a Muniment of Title when

four years have lapsed from the Decedent’s death is included at Appendix “E”.

2. Finding of “No Default.” Even though TPC § 89B of the Probate Code requires

that an application for muniment of title to be filed within four years of the date of decedent’s

10

death, a court can admit the will to probate as a muniment if the applicant is not in default for

failing to file the application within four years. The court must make a finding of “no default.”

Cases when courts admit wills to probate after four years usually involve particular fact patterns

such as (a) the will was lost, undiscovered or concealed from the will proponent; (b) the will is

offered for probate to establish a link in the chain of title; or (c) an agreement was made among

the heirs not to probate the will. See Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San

Antonio 1978, writ ref’d n.r.e.); see also Estate of McGrew, 906 S.W.2d 53 (Tex. App.—Tyler

1995, writ denied).A sample Order Admitting Will to Probate as a Muniment of Title that

includes a finding of “no default” is included at Appendix “F”.

As a practical matter, the easiest way for a judge to find “no default” is when the

applicant is the buyer of the real property owned by the decedent. The applicant buyer is not in

default for failing to bring forth a will within four years of the decedent’s death because the

buyer never had possession of the will, and the buyer is offering the will for probate to establish

a link in the chain of title so that the buyer can purchase the real property. Judges are also

willing to find “no default” when a child of the decedent offers the will for probate when the will

had been in the possession of the decedent’s spouse and was only just discovered by the children

after that parent passed away.

3. Section 128B Notice to Potential Intestate Heirs. When filing a will for probate

as a muniment of title more than four years after a decedent’s death, the applicant must either:

(a) file with the court an affidavit signed by the decedent’s potential heirs at

law stating that the heirs do not object to the offer of the testator’s will for probate TPC §

128B(b); or

(b) give notice by service of process to the decedent’s potential intestate heirs

whose address can be ascertained by the applicant with reasonable diligence. The notice

must be given before the will is probated. TPC § 128B(a).

The notice and the affidavit must also contain a statement that:

(1) the testator’s property will pass to the testator’s heirs if the will is not admitted

to probate; and

(2) the person offering the testator’s will for probate may not be in default for

failing to present the will for probate during the four-year period immediately following

the testator’s death.

TPC § 128B(c). A sample TPC §128B Notice and a sample TPC §128B Affidavit can be found

at Appendix “G” and “H”. The Judges in Tarrant County prefer that the TPC § 128B Affidavit

be specific and contain as much detail about the decedent and the family as possible, especially

when the buyer of the real property is the applicant.

If the applicant is unable to ascertain the last known address of any of the decedent’s

heirs at law, Section 128B(d) requires the court to appoint an attorney ad litem to protect the

interests of the unknown heirs. This seems to happen more than one might think; for example, if

one of the family members have moved away and the family has not stayed in communication.

11

An ad litem appointment is expensive, but sometimes it is the only way to clear title when more

than four years have passed since the deceased passed away.

Although wills may be probated as muniments of title within four years from the date of

death, thereby providing a less expensive alternative when no administration is necessary, TPC §

89A is also an important tool to resolve title issues, sometimes offering the only solution

available to clear title to real property when four years have lapsed since the date of death.

V. PERSONAL REPRESENTATIVES AND THE AWESOME POWER OF SALE

There are times when a decedent leaves a valid will but there is no provision in that will

granting the executor the power to sell real property, or perhaps that grant of power is not

adequate. For example, instead of the will granting the executor the power to sell “all my

assets,” or “all my property, or “all my real property”, or even “all powers given to a trustee

under the Texas Trust Code”, the will merely grants the executor “all powers given to executors

under Texas law,” or “the power to sell 1234 Merry Jane Way” when the property in the estate is

5678 Doubting Joe Lane.

A. Powers of Representatives

Independent and dependent representatives generally have the same basic duties and have

similar powers. They have the duty to handle property of the estate as a prudent person would

take care of his or her own property. TPC § 230. The difference is how they are able to exercise

their powers to carry out that duty. Independent representatives can exercise his or her powers

nearly free from court supervision and control. TPC § 145(b). This can occur when a decedent’s

will provides for the independent powers, or when the court orders independent powers after

consent from all of the heirs. TPC §§ 145(c), (f). Dependent representatives, on the other hand,

must seek court approval before exercising most of their powers.

B. Power of Sale Granted in the Will

An independent executor is a personal representative designated as such in a decedent’s

will and appointed by the court at the time the will is admitted to probate. TPC § 76. In contrast,

an independent administrator is a personal representative appointed by the court when either the

will does not appoint a personal representative or the independent executor designated in the will

has died or is unable to act and no successors are designated. TPC § 76. Generally, the power to

sell property is not a power of an independent administrator. TPC § 331. There are two

exceptions: (i) if the sale is to pay the debts and/or expenses of the estate, or (ii) if the court has

authorized such sale. When the will contains adequate language authorizing an independent

executor to sell real property, the independent executor is authorized to sell real property without

any approval from the court. TPC § 332. Remember that the devisees under the will are the

owners of the real property, not the personal representative, and, unless the independent executor

is given the power of sale, the owners of the real property must join in any conveyance. All of a

decedent’s estate vests immediately upon time of death in the heirs at law, or in the devisees

under a will, not in the personal representative. TPC § 37.

12

C. Power of Sale Necessary to Pay Expenses

Even when a decedent’s will does not grant the representative the power of sale, the

representative has the authority to sell assets of the estate without court order when it is

necessary in the administration of the estate. Items deemed necessary for administration of the

estate include: to pay expenses of administration; funeral expenses; expenses of last illness; or in

the best interest of the estate. TPC § 145 (h). If there is a question as to whether the sale is

necessary in the administration of the estate, the representative could consider initiating a

declaratory judgment proceeding to determine if necessity exists, or the representative may apply

to the court under Section 341 of the Probate Code. The procedure for selling real property

under Section 341 of the Probate Code is discussed elsewhere in this paper.

As a practical matter, in the past title insurance companies have insured sales of real

property out of estates to pay expenses short of a court order when no liquid assets remain in the

estate, only the real property. Section 322B of the Probate Code delineates the order that assets

are sold in an administration to satisfy debts; real estate is near the bottom of the list. Title

insurance underwriters will follow this hierarchy and require review of the inventory and claims

and a list of debts of the estate in making its determination to insure the transaction. If there are

assets other than the real property, the title insurance underwriter will usually require a court

order to sell. If the only asset left in the estate is the house, it is usually the lawyer that has not

been paid, and the title insurance underwriter may not insure the transaction without a court

order unless all devisees join in the conveyance. It is usually the case in these instances that the

personal representative cannot obtain the approval of the devisees for various reasons, such as

one is a minor or the devisee assumes the attitude of “why should I because I am not going to get

anything.”

D. Power of Sale by Agreement.

The 82nd Texas Legislature passed SB 1198 that added, among other provisions,

Sections 145A, 145B and 145C to the Texas Probate Code relating to the power of sale. These

changes apply only where the date of death is on or after September 1, 2011. A full text of these

sections may be found at Appendix “I”.

1. 2011 Legislative Changes. In essence, the new code provisions attempt to grant

some representatives the power of sale when it is not there otherwise. Section 145A of the

Probate Code attempts to permit distributees to agree to grant the power of sale to a Section 145

independent executor appointed when a decedent does not have a will or when a decedent has a

will but it does not grant the executor the power of sale. The distributees’ consent must be

obtained before the Section 145 independent executor is appointed. The beneficiaries who are to

receive any interest in the real property must consent “in the application for independent

administration or in their consents to the independent administration.” TPC § 145A. Once the

order is entered containing the power of sale, the independent executor under Section 145

apparently needs no further consent of the beneficiaries to sell real property.

Section 145B does not appear to add anything new to the power of sale but seems to try

to restate existing law: except as provided otherwise, an independent executor, acting without a

13

court order, may take any action that a personal representative subject to court supervision may

take with or without a court.

Section 145C appears to permit an independent executor and an independent

administrator to sell real property without court approval once the Order grants the power of sale.

Section 145C(a) distinctly states that within this section “ ‘independent executor’ does not

include an independent administrator,” but continues throughout the section to never mention

one type of representative without mentioning the other type of representative.

2. Practitioners Eager to Rely on the 2011 Legislation. Probate attorneys seem eager

to rely on the new provisions because many believe that the provisions could make things easier

when there is no power of sale in the will, and especially when there is no will. In this sense,

easier means that all distributees might not have to join in the sale of the property (even though

the distributees consented in the application for the independent administration or in their

consents to the independent administration). It does nothing to make it easier to avoid liens

against the heirs. Even under the new statute, involuntary liens against the devisees cannot be

avoided. Title vests in the devisees as of the date of death. These liens must still be dealt with

prior to any conveyance, whether by a personal representative acting alone through a power of

sale, or with all devisees joining in the conveyance. Only if the sale is accomplished following a

court order approving the sale or if the sale is to pay for the debts of the estate may any such

liens against the devisees be ignored.

3. Title Insurance Underwriters Appear Hesitant.

(a) Statute Unclear on Its Face. Title insurance underwriters seem hesitant to

rely on the power of sale under this new legislation. They may hesitate because the

statute is so new, or because the statute seems poorly written to the non-probate

practitioners. The statute does not simply state that an independent executor or an

independent administrator has the power to sell real property if the distributees agree in

the application first filed with the court and if the power to sell is included in the order

appointing the executor or administrator. Instead, the statute is confusing and difficult to

interpret. Take for example, the situation as contemplated under Section 145A when

there is no will. In instances when there is no will and there is an administration, the

representative, whether independent or not, is referred to as an administrator, not as an

executor. TPC § 76. Section 145A allows a court to “include in an order appointing an

independent executor under Section 145 of this code… .” Does this now mean an Order

appointing an administrator when there is no will must have the heading “Order

Appointing Executor Under Section 145” or was ‘executor’ used as a generic term like

‘representative’? Recent title insurance underwriting bulletins do not provide guidance

but are mere recitals of the statute.

At least one underwriter is willing to insure “a sale of real property by the

executor/administrator when the power of sale is contained in the Order Appointing the

Executor.” This underwriter does not seem to mind or even acknowledge that usually there is no

Order Appointing Executor when there is no will, but instead an order Appointing Administrator.

14

(b) Concern of Attack by Creditor of Estate. Other title insurance

underwriters have addressed concerns about the ability of creditors of the estate to attack

the sale. They seem to argue that Section 145C(c) specifically protects good faith arms’

length purchasers from attacks on the sale by the devisees but does not protect all parties

from attacks on the sale or from claims by creditors of the estate. The argument is

reinforced by provisions in other parts of the Probate Code, such as Section 137(c)

dealing with Small Estate Affidavits. Section 137(c) provides that the recorded Small

Estate Affidavit may be relied upon by a bona fide purchaser for value without actual or

constructive notice of an undisclosed heir in taking title to homestead property free of any

claims of such undisclosed heir. However, such bona fide purchaser takes title subject to

any claims of creditors of the deceased. An equivalent provision is not in Section 145C,

but neither is the opposite: that a bona fide purchaser takes the property with a court

ordered power of sale free of the claims of creditors of the deceased. These title insurance

underwriters argue that an unpaid creditor of the estate may make a claim against the

property sold, resulting in a claim against the title policy issued pursuant to the sale. This

may result in a title insurer defending the conveyance by the independent executor and

any claim on a title policy is a net loss. Such concern may cause some title insurance

underwriters to refuse to rely upon the provisions of Section 145A unless it is used in

conjunction with a sale to pay debts of the estate.

Title insurance underwriters could also choose not to rely on the provisions of Section

145A without further consent or joinder of the heirs/devisees. To the title insurance

underwriters’ credit, if the heirs/devisees are available to consent to the power of sale at the time

of the application to probate the will and appointment of personal representative, why would

they not also be available to join in the conveyance? If the heirs/devisees can join in the deed,

then no consent is necessary and these provisions in Section 145 would not be needed.

VI. WHAT EXECUTOR? THAT EXECUTOR DIED YEARS AGO!

When an executor named in a will dies before the will is probated, or passes away after

being appointed by the court, Texas Probate Code § 145(d) and § 220 provide specific guidelines

so an alternate representative can be appointed and pave the way for the real estate closing. If an

executor passes away after court appointment, a prudent practitioner would have a successor

executor appointed under Section 220 and not a new administrator appointed under Section

145(d) of the Texas Probate Code because successor executors assume all of the rights, duties

and powers of the predecessor, which would include any power of sale or other powers contained

in the will. Arguably, the recent additions of Sections 145A, 145B and 145C to the Texas

Probate Code might make this distinction moot. Until the position that the title insurance

underwriters will take on the new legislation is determined, the best practice is to proceed under

TPC § 220 and seek a successor executor.

A. TPC § 145(d)- Appointment of Independent Administrator

If the will fails to name an executor, or names an executor who is dead or not competent

to serve and no alternate or successor executor is named, then the court may probate the will and

appoint an independent administrator “with will annexed.”

15

The independent administration may be created when all of the distributees of the

decedent agree on the advisability of an independent administration with a court-appointed

independent administrator in situations normally calling for an administration with will annexed.

Of course, there must be a need for administration. TPC § 145(d) and § 178(b). Legislation

effective September 1, 2011, added provisions to TPC § 145 allowing parents of minor children

and trustees to consent to independent administration by agreement when no conflicts exist.

A sample Application for Letter of Independent Administration is included at Appendix

“J”.

If an administration is already pending and the executor dies or resigns, TPC § 145(d)

also permits courts to appointment an administrator. The court must find that there is a

continuing need for administration of the estate. After an administrator with will annexed

applies to the court and qualifies, the administration proceeds in the same manner as in a regular

independent administration and the administrator is governed by the rules applicable to

administrations generally.

Note that even if the new administrator is appointed under TPC § 145(d) with will

annexed, an administrator does not have the power of sale contained in the will. TPC § 331 tells

us that, “Except as hereinafter provided, no sale of any property of an estate shall be made

without an order of the court authorizing the same.” There is no provision in the Texas Probate

Code, short of the new Sections 145A, 145B, and 145C, granting an independent administrator

the power of sale. TPC § 332 authorizes only an independent executor to sell property when

granted the power in the will.

So the question becomes, will courts consider an Application for Independent

Administrator under § 145(d) filed in an existing probate when the predecessor has died as one

that qualifies for the granting of the power of sale under TPC § 145A? More importantly, will

title insurance underwriters rely on such power when insuring a transaction?

B. TPC § 220 Appointment of Successor Representative

The court can appoint a successor representative if an appointed representative dies,

resigns, or is removed only if there is a showing that there is a continuing need for

administration. TPC § 220(a). Successors assume all of the rights, powers and duties of their

predecessors. TPC §§ 224-226. Successor executors have the power of sale if the predecessor

had the power of sale. TPC § 226. The appointment of a successor executor under this section as

opposed to Section 145(d) of the Texas Probate Code would eliminate a reliance on the new

Sections 145A, 145B, and 145C.

Although it is most common to see a successor representative appointed when the

successor representative is also listed as an alternate executor in the will, there is no requirement

under TPC § 220(a) that the successor representative be listed in the will in order to be

appointed. The following sample forms are included in Appendix at “K”:

Application for Appointment of Successor Independent Executrix and Issuance of New

Letters Testamentary in Accordance with § 220 of Texas Probate Code

16

Proof of Need for Continuation of Administration for the Estate

Appointment of Registered Agent

Oath of Successor Independent Executrix

Order Granting Application for Appointment of Successor Independent Executrix and

Issuance of New Letter Testamentary in Accordance with § 220 of Texas Probate Code

C. 2011 Legislative Changes Impacting Executors

Two recent changes to the Texas Probate Code are noteworthy to practitioners and

executors. The first change is to the required TPC § 128A Notices and has little impact on title

examination. In 2007, the Legislature amended TPC § 128A to require an executor, within 60

days from the date of the executor’s qualification, to provide notice of the probate proceeding to

the beneficiaries under a will. There was quite a bit of confusion surrounding the 2007

modifications, so the 2011 Legislature attempted to simplify the TPC § 128A notice

requirements, effective September 1, 2011. The changes make it clear, for example, that a

beneficiary under a contingency that has not occurred at the time of the decedent’s death is not

entitled to TPC § 128A notice (TPC § 128A(a)), nor is a beneficiary who receives only nominal

gifts (TPC § 128A(d)(2)), or whose gifts have already been satisfied by the time the notice would

otherwise be given (TPC § 128A(d)(3)). In addition, the changes allow the executor to provide a

written summary of the gifts to the beneficiary, in lieu of a full copy of the will. TPC §

128A(e)(6).

The second change concerns TPC § 250 and might have more of an impact on title

insurers in their examination of probate proceedings. The change to TPC § 250 permits

independent executors or administrators to file an affidavit in lieu of an inventory when no debts

remain by the inventory due date. TPC § 250(c). The affidavit has to merely state that no debts

remain. The independent executor or administrator must still prepare a sworn inventory and

provide a copy to all beneficiaries other than those receiving specific gifts. The changes also

allow an intestate heir, or beneficiary under a prior will, to receive a copy of the inventory upon

written request. TPC § 250(e)(1).

Many of the existing wills provide for independent administration with language such as

“No action shall be required in any court... in relation to the settlement of my estate other than

the return of an inventory and list of claims of my estate… .” This language is derived from TPC

§ 145(b). Some might argue that an inventory is still required in these circumstances. For the

practitioner, the new TPC § 250 perhaps justifies a change adding “if required by law” to the end

of that sentence in the will. For the title insurers, the changes to TPC § 250 might alter their

examination of probate proceedings. Many title examiners review the inventory in an estate to

determine the possibility of federal or state estate tax liens due to the value of the assets in the

estate. When no inventory is available, most companies require and accept an affidavit from the

personal representative to the effect that no debts or estate taxes are due, or if such are owed,

there exist sufficient assets in the estate to pay such debts and taxes and/or that such debts or

taxes will be paid from the proceeds of the insured transaction. If an affidavit pursuant to TPC §

250 is used, it is likely title insures will require the estate tax lien affidavit more frequently.

17

VII. BUT ALL THE HEIRS AGREE! WHY DOES THE DEPENDENT

ADMINISTRATOR HAVE TO OBTAIN COURT APPROVAL TO SELL THE

REAL PROPERTY?

A personal representative, whether that person is an executor or an administrator, will

either be independent or dependent, depending on whether that person is subject to court

supervision. A personal representative is dependent if there is no will, or the will does not

provide for independent administration and the devisees cannot agree otherwise; or if the

personal representative wants to be dependent and be afforded the protections from liability that

comes with dependent administration. TPC §§ 81, 82. The personal representative of a

dependent estate must obtain court approval before taking most actions, including sales of real

property, payment of estate debts, expenditure of funds, distributions of assets, or any acts

obligating the estate. TPC § 234(a). A sale of real property will require the seller to take

additional steps and provide certain documentation to the court and to the title company, all

resulting in a longer time to close, and a higher cost.

A. Property Subject to Sale.

The Texas Probate Code describes the several categories of real property that are subject

to sale:

Property that is liable to perish, waste or deterioration, or that will constitute an expense

or disadvantage to the estate, must be promptly sold. TPC § 333.

If needed to pay expenses of administration, funeral, last illness, family allowances

against the estate. TPC §§ 334 and 341(1).

All property that cannot be partitioned among the heirs or paid in cash to the estate. TPC

§§ 381 and 427.

Realistically, any sale of real property can be characterized as falling into one of these

categories. Almost all real property can be described as deteriorating or causing expense to the

estate for maintenance, mowing, taxes, insurance etc. The applicant should state in the

application that the sale is in the best interest of the estate or is necessary. The process to sell

this property is a four-step process.

B. Four-Step Process for Sale: All Steps Completed Before Closing.

Generally, the sale of real property by a representative in a dependent administration

involves: the application for sale of real property; the order approving the sale; the report of

sale; and the order confirming the sale. All of these steps occur prior to a closing. Only after the

fourth step in the process (when the court confirms the particular contract for sale and the closing

statement etc.) can the representative of the estate proceed to closing and deliver the deed. TPC §

357. At closing, the deed shall refer to and identify the decree of the court confirming sale, the

last step in the four-step process. TPC § 356. A deed conforming to these procedures is prima

facie evidence that said sale met all applicable requirements of the law. Title insurance

underwriters will strictly abide by this four-step process because if the procedures are not

18

properly followed, the sale could be open to attack by persons interested in the estate. See Walker

v. Sharpe, 807 S.W.2d 448 (Tex. App.—Corpus Christi 1991, writ denied).

1. Step 1: Application for Sale of Real Property. A sample Application for Sale of

Real Property is included at Appendix “L”. The Application must: be in writing; describe the

property to be sold; contain a sworn detailed statement of the present condition of the estate; and

detail the facts that show a necessity or advisability for the sale. TPC § 342. The Application

should also state that the sale is in the best interest of the estate. Citation must issue and be

served by posting, and the citation must be posted for at least ten days before the court can act

upon the Application. A hearing is not required unless the Application is opposed. TPC § 345A.

2. Step 2: Order Permitting Sale of Real Property. A sample Order Permitting Sale

of Real Property is included at Appendix “M”. The Order authorizes the representative of the

estate to sell the property upon the terms contained in the Order. In other words, the Order of

Sale authorizes the representative to enter into a listing agreement, to solicit purchases, and to

enter into an equitable sale, i.e. a contract to sell the real property on the terms contained in the

Order. Until this Order is signed, the representative does not have the authority to bind the estate

in a contract to sell the real property. It is important to note that the Order Permitting Sale of

Real Property does not permit the representative to proceed to closing, but merely to solicit

offers and enter into a sales contract. A sales contract is an equitable sale of the property and this

is the ‘sale’ that the court authorizes. This is commonly misunderstood by both attorneys and

title companies.

The Order should find that citation was issued and served according to law; that the

verified affidavit met the requirements of the law; if a hearing was necessary; that the bond is

sufficient as required by law; whether the sale will be private or public on a certain day and time;

make a finding of best interest of the estate; that the sale is necessary and advisable, should

include a sufficient legal description of the property; and that the Report of Sale shall be filed

and returned in accordance with the law. TPC § 346.

3. Step 3: Report of Sale. Once the representative has entered into a contract with a

purchaser to sell the real property, the representative must report back to the court with the terms

of that equitable sale, and seek the court’s approval to convey legal title to the real property

according to the terms of the contract to that specific purchaser. A sample Report of Sale is

included at Appendix “N”.

The Report of Sale should contain all information regarding the equitable sale of the

property, i.e. the contract for sale, that the representative entered into with the purchaser. The

Report should include the legal description of the property; the date of the sale of the property

(the execution date of the sales contract); the name of the purchaser; the estimated net proceeds

to the estate; a statement on best interests and that the purchaser is ready to proceed to closing

and comply with the terms of the sale.Usually, the HUD Settlement statement is also attached to

the Report of Sale.

4. Step 4: Order Confirming Sale. Once the Report of Sale has been on file with the

court for at least five days, the court may consider it. TPC § 355. If the court is not satisfied that

the sale was for a fair price and was properly made, it must order that the sale be set aside and

19

order that a new sale be made if necessary. TPC § 355. A sample Order Confirming Sale is

included at Appendix “O”.

It is not until the court signs the Order Confirming Sale of Real Property that the

representative has the authority to convey legal title to the purchaser. Note also that the deed

signed at closing must refer to and identify the decree of the court confirming sale. Most title

companies will actually attach a copy of the signed Order Confirming Sale to the vesting deed.

Because the deed should not be dated and notarized before the order authorizing the

representative to convey legal title, it is a best practice not to close in escrow but wait for the

Order Confirming Sale to be signed. Instead, the closing should occur only after the court

authorizes the conveyance of legal title, and which is upon signing the Order Confirming Sale.

VIII. THE SELLER IS A MINOR

Generally speaking, minors can enter into contracts but those contracts are voidable by

the minor during his minority or within a reasonable time thereafter. A contract is not binding on

a minor merely because it is for the minor's benefit. In Texas, once the minor reaches the age of

18, he can convey legal title to real property. But before that time, the only alternatives are to (1)

enter into a full guardianship proceeding, which is cumbersome and expensive, or (2) proceed

under Section 889 of the Texas Probate Code whereby the court orders the sale of the minor’s

interest in real property. Many times, a full guardianship of the estate is not needed because the

minor inherits an undivided interest in real property intestate, and the property is the only asset

of the minor. In these instances, § 889 of the Texas Probate Code proves a better alternative to a

guardianship of the estate.

Note that TPC § 890 is virtually identical to TPC § 889 but is to be used in instances

where a ward has a guardianship of the person but no guardianship of the estate. There is no

requirement that the ward be a minor but the procedures are the same as those in TPC § 889.

A sample Application for § 889 Sale of Real Property of a Minor by An Adoptive Parent

is included at Appendix “P”. Basically, a natural or adoptive parent, or the managing

conservator, of a minor who is not a ward may apply to the court for an order to sell such

individual’s interest in real property, when the value of such interest is less than $100,000,

without being appointed as a guardian. The minor may not later disaffirm a sale of property sold

under a § 889 Order.

The Application must contain the legal description of the real property; the name of the

minor and the minor’s interest in the property; the name of the purchaser; that the sale is for

cash; and that all funds received shall be used for the benefit of the minor. TPC § 889 (b).

The court may issue citation if it feels it is necessary, and the court shall conduct a

hearing on the Application. TPC § 889 (c). As a practical matter, the court will want some

evidence, either in the Application or presented at the hearing as to the value of the property,

which may be proved by appraisal. The Court will also make certain that the sale is in the best

interest of the minor. TPC § 889 (d).

20

It is important to note that the minor’s proceeds of sale must be deposited into the registry

of court. Most title companies will require that the Order specifically makes this finding. The

parent may then proceed under TPC § 887 to withdraw those funds from the registry.

IX. CONCLUSION

The death of an individual holding title to real property has a significant impact on real

estate transactions. Evidencing the chain of title, capturing all interests, and identifying liens

against heirs are just a few of the common issues encountered. Whether the death is recent, or

generations past, the death of a property owner alone should not cause the untimely death of the

deal.

Appendix “A”

Intestate Succession in Texas of Real Property

1/4 to

mother

1/2 to

surviving

spouse

1/4 to

father

D Dies PRIOR to 9/1/1993

Intestate Succession in Texas of Real Property

MARRIED WITH

NO CHILDREN OR THEIR

DESCENDANTS

COMMUNITY PROPERTY SEPARATE PROPERTY

All to

Surviving

Spouse

MARRIED WITH

CHILDREN

COMMUNITY PROPERTY

SEPARATE PROPERTY

MARRIED WITH

CHILDREN When All

Surviving Children &

Descendants are also

Children & Descendants

of Surviving Spouse

COMMUNITY PROPERTY

All to

Surviving

Spouse

D Dies AFTER 9/1/1993

MARRIED WITH

CHILDREN When All Surviving

Children & Descendants

NOT Child or Descendant

of Surviving Spouse

COMMUNITY PROPERTY

If only 1 parent survives,

(s)he takes 1/4 of RE & 1/4

divided b/t D’s siblings &

their heirs. If no siblings

or their heirs, then

surviving parent takes 1/2

of RE.

If neither parent

survives, 1/2 of RE equally

to D’s siblings & their

heirs; if none of them, all

to surviving spouse.

1/2

equally

divided

among

D’s

children

1/2

retained by

surviving

spouse

1/3 to

spouse

for life*

2/3

equally

divided

among

D’s

children

* To children &

their descendants

upon death of

surviving spouse

D Dies AFTER 9/1/1993

1/2

equally

divided

among

D’s

children

1/2

retained

by

surviving

spouse

Children of D’s children take their

parent’s share

TPC §38 (b) (1)

TPC §38 (b) (2) TPC §45 (a) (1)

TPC §45 (a) (2)

TPC §45 (b)

S. Frossard & J. Bailey

2011 TLTA Institute

Children of D’s children take their

parent’s share

Prior

TPC §45

Equally

divided

among

children

Intestate Succession in Texas

Real Property

Page 2

UNMARRIED WITH

CHILDREN

Children of deceased children

take their parent’s share

UNMARRIED WITH NO

CHILDREN & WITH

BOTH PARENTS

SURVIVING



UNMARRIED With

NO CHILDREN & With

MOTHER OR FATHER

AND SIBLING

SURVIVING



UNMARRIED WITH

NO CHILDREN,

NO SURVIVING PARENT, &

NO SURVIVING SIBLINGS OR

THEIR DESCENDANTS

1/2 to

Father 1/2 to

Mother

If no parent survives, siblings inherit everything. TPC §38 (a) (3).

If no siblings, the surviving parent inherits everything.

1/2

equally

to

siblings

1/2 to

Surviving

Mother or

Father

1/2 to

Paternal

Kindred

1/2 to

Maternal

Kindred

TPC §38 (a) (1)

TPC §38 (a) (2)

TPC §38 (a) (2)

TPC §38 (a) (4)

S. Frossard & J. Bailey

2011 TLTA Institute

APPENDIX B-1

------------------------------------------------------------[Space Above This Line For Recording Data]--------------------------------------------------------

-----

AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS

RE: ESTATE OF STARR G. DUVAL,

a/k/a STARR GLASSCOCK DUVAL, DECEASED

BEFORE ME, the undersigned authority, on this day personally appeared

KIMBELL D. KARNES,

JACK LIPSCOMB, and SCURRY LIPSCOMB,

("Affiants"), who, being first duly sworn, upon their oaths state:

1. a. “My name is KIMBELL D. KARNES, and I live at 1234 Pretend Street, Fort

Worth, Tarrant County, Texas 76109. I am the daughter of STARR G. DUVAL, a/k/a STARR

GLASSCOCK DUVAL, DECEASED ("Decedent"). I am personally familiar with the family

and marital history of Decedent, and I have personal knowledge of the facts stated in this

Affidavit.

b. “My name is JACK LIPSCOMB, and I live at 1236 Pretend Street, Fort Worth,

Tarrant County, Texas 76109. My relationship to Decedent was that of friend and neighbor. I am

personally familiar with the family and marital history of Decedent, and I have personal knowledge

of the facts stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled

to receive any part of Decedent’s estate according to the laws of descent and distribution of the

State of Texas. I knew Decedent from 1962 to 2011, being approximately Forty-nine (49) years.

c. “My name is SCURRY LIPSCOMB, and I live at 1236 Pretend Street, Fort

Worth, Tarrant County, Texas 76109. My relationship to Decedent was that of friend and

neighbor.I am personally familiar with the family and marital history of Decedent, and I have

personal knowledge of the facts stated in this affidavit. I have no interest in the Estate of Decedent

and I am not entitled to receive any part of Decedent’s estate according to the laws of descent and

distribution of the State of Texas. I knew Decedent from 1962 to 2011, being approximately Forty-

nine (49) years.

2. “Decedent was born STARR LOVING GLASSCOCK on October 31, 1919, in

Fayette, Fayette County, Idaho. Decedent died on June 12, 2011, at the age of 91 years. Decedent's

place of death was Happily Ever After Adult Care Home, 2512 Seaside Avenue, Portland,

Multnomah County, Oregon 97206. At the time of decedent's death, decedent's residence was 1234

Pretend Street, Fort Worth, Tarrant County, Texas 76109.

3. “Decedent's marital history was as follows: Decedent was married only once in her

lifetime, and that marriage was to TITUS WINKLER DUVAL in July, 1942, in Corpus Christi,

Nueces County, Texas; That TITUS WINKLER DUVAL died on September 17, 2007, in Fort

Worth, Tarrant County, Texas. [Note: An Affidavit of Facts Concerning the Identity of Heirs of

TITUS WINKLER DUVAL, Deceased, is being filed for record in the Office of the County Clerk

of Tarrant County, Texas, simultaneously herewith.] That Decedent never remarried after the death

of TITUS WINKLER DUVAL, Deceased.

4. ”Decedent had the following children:

a. Name: EARL PARKER DUVAL

Date of Birth: May 28, 1947

Name of Other Parent: Titus Winkler Duval

Current Address: 5464 Lots O’ Trees

Portland, Oregon 97202

b. Name: KIMBELL LOVING DUVAL KARNES

Date of Birth: October 31, 1949


Current Address: 1234 Pretend Street


5. Decedent did not have or adopt any other children and did not take any other

children into decedent's home or raise any other children, except: None.

6. Decedent left a written Will, which has not been and will not be probated,

Select one:

[ ] the original of which is attached hereto and incorporated herein

for all purposes.

[ ] a copy of which is attached hereto and incorporated herein

for all purposes.

7. There has been no administration of Decedent's estate, and none is expected.

8. Decedent left no debts that are unpaid, including expenses of her last illness and

funeral, except: None.

9. There are no unpaid estate or inheritance taxes, except: None.

10. To the best of Affiant’s knowledge, Decedent owned an interest in the following real

property:

Lot 8, Block 35, Castle Crossroads, an Addition to the City of Fort Worth, Tarrant

County, Texas, according to plat recorded in Volume 388-721, Page 616, Deed

Records of Tarrant County, Texas.

Property Address: 1234 Pretend Street,Fort Worth, Texas 76109

By deed from ARCHER HOCKLEY BUILDERS, INC. to TITUS WINKLER

DUVAL and wife, STARR G. DUVAL, dated March 2, 1962, recorded in Volume

3672, Page 230, Deed Records of Tarrant County, Texas.

11. This Affidavit is made for the purpose of placing evidence of record so that the heirs

at law of the said STARR G. DUVAL, a/k/a STARR GLASSCOCK DUVAL, Deceased, can be

determined. Affiant(s) also state that the facts are made of their own personal knowledge and

they are true and correct.

FURTHER AFFIANT(S) SAITH NOT.”

KIMBELL D. KARNES, “Affiant”

JACK LIPSCOMB, “Affiant”

SCURRY LIPSCOMB, “Affiant”

(Combined Jurat and Acknowledgment)

STATE OF TEXAS §

COUNTY OF TARRANT §

This instrument was SUBSCRIBED AND SWORN TO AND ACKNOWLEDGED before

me on the ___ day of ______________, 20____, by KIMBELL D. KARNES.

[Notary Seal]

Notary Public, State of Texas

Notary’s commission expires:


STATE OF TEXAS §



me on the ____ day of _________________, 20____, by JACK LIPSOOMP and SCURRY

LIPSOMB.

[Notary Seal]



AFTER RECORDING, RETURN TO:

APPENDIX B-2

------------------------------------------------------------[Space Above This Line For Recording Data]------------------------------------------------------------

-


RE: ESTATE OF STARR GLASSCOCK DUVAL, DECEASED


TITUS WINKLER DUVAL,

JACK LIPSCOMB and SCURRY LIPSCOMB,


1. a. “My name is TITUS WINKLER DUVAL, and I live at 2010 Corey Castle

Court, Arlington, Tarrant County, Texas 76012. I am the surviving spouse of STARR

GLASSCOCK DUVAL, DECEASED ("Decedent"). I am personally familiar with the family

and marital history of Decedent, and I have personal knowledge of the facts stated in this

Affidavit.

b. “My name is JACK LIPSCOMB, and I live at 1201 Beaconlight Lane, Arlington,

Tarrant County, Texas 76011. My relationship to Decedent was that of friend. I am personally

familiar with the family and marital history of Decedent, and I have personal knowledge of the facts

stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled to receive

any part of Decedent’s estate according to the laws of descent and distribution of the State of Texas.

I knew Decedent from 1982 to 2007, being approximately Twenty-five (25) years.

c. “My name is SCURRY LIPSCOMB, and I live at 201 Woodiest Drive, Arlington,

Tarrant County, Texas 76012. My relationship to Decedent was that of friend. I am personally

familiar with the family and marital history of Decedent, and I have personal knowledge of the facts

stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled to receive

any part of Decedent’s estate according to the laws of descent and distribution of the State of Texas.

I knew Decedent from 1995 to 2007, being approximately Twelve (12) years.

2. “Decedent was born STARR LOVING GLASSCOCK on October 3, 1957, in Fort

Worth, Tarrant County, Texas. Decedent died on March 24, 2007, at the age of 49 years.

Decedent's place of death was Arlington Memorial Hospital, Arlington, Tarrant County, Texas. At

the time of decedent's death, decedent's residence was 2010 Corey Castle Court, Arlington, Tarrant

County, Texas 76012.

3. “Decedent's marital history was as follows: Decedent was married only once in her

lifetime, and that marriage was to TITUS WINKLER DUVAL on November 6, 1981, at United

Methodist Church, in Arlington, Tarrant County, Texas, and that they were still married at the time

of her demise.

5. ”Decedent had the following child:

Name: EARL PARKER DUVAL

Date of Birth: December 10, 1983


Current Address: 600 Mountain Cove

Austin, Texas 78730

5. Decedent did not have or adopt any other children and did not take any other

children into decedent's home or raise any other children, except: None.

6. Decedent died without leaving a written Will.






property:

Lot 11, Block 12, EASTERN SHIRE, an Addition to the City of Arlington, Tarrant

County, Texas, according to plat recorded in Cabinet A, Slide 65, Deed Records of

Tarrant County, Texas.

Property Address:2010 Corey Castle Court, Arlington, Texas 76012

By deed from CHICO GRUENE and wife, FRIO GRUENE to TITUS WINKLER DUVAL

and wife, STARR GLASSCOCK DUVAL, dated August 2, 2000, recorded in Volume



at law of the said STARR GLASSCOCK DUVAL, Deceased, can be determined. Affiant(s) also

state that the facts are made of their own personal knowledge and they are true and correct.


TITUS WINKLER DUVAL, “Affiant”



(Insert Combined Jurat and Acknowledgment)

APPENDIX B-3

------------------------------------------------------------[Space Above This Line For Recording Data]------------------------------------------------------------

-


RE: ESTATE OF STARR G. DUVAL, DECEASED


TITUS W. DUVAL,

JACK LIPSCOMB and SCURRY LIPSCOMB,


1. a. “My name is TITUS W. DUVAL, and I live at 1643 Bearcat Drive, Mansfield,

Tarrant County, Texas 76063. I am the surviving spouse of STARR G. DUVAL, DECEASED

("Decedent"). I am personally familiar with the family and marital history of Decedent, and I

have personal knowledge of the facts stated in this Affidavit.

b. “My name is JACK LIPSCOMB, and I live at 1026 Championship Drive,

Kennedale, Tarrant County, Texas 76060. My relationship to Decedent was that of friend. I am




State of Texas. I knew Decedent from 1981 to 2001, being approximately Twenty (20) years.

c. “My name is SCURRY LIPSCOMB, and I live at 1026 Championship Drive,

Kennedale, Tarrant County, Texas 76060. My relationship to Decedent was that of friend. I am




State of Texas. I knew Decedent from 1981 to 2001, being approximately Twenty (20) years.

2. “Decedent was born STARR LOVING GLASSCOCK on October 13, 1922, in

Pottawanamee County, Oklahoma. Decedent died on May 11, 2001, at the age of 78 years.

Decedent's place of death was 3323 JayGray Road, Arlington, Tarrant County, Texas 76017. At

the time of decedent's death, decedent's residence was 3323 JayGray Road, Arlington, Tarrant

County, Texas 76017.

3. “Decedent's marital history was as follows: Decedent was married three (3) times

during her lifetime.

a. Decedent’s first marriage was to Terrell Swisher in Tulsa, Tulsa County,

Oklahoma in the year 1940; Decedent’s first marriage was dissolved by

divorce in Tulsa, Tulsa County, Oklahoma in the year 1942;

b. Decedent’s second marriage was to Jeff Davis in Tulsa, Tulsa County,

Oklahoma in the year 1947; Decedent’s second marriage was dissolved by

divorce in Tulsa, Tulsa County, Oklahoma in the year 1955;

c. Decedent’s third marriage was to Titus W. Duval, in Juarez, Mexico, on July

1, 1957, and that they were still married at the time of her demise.

6. Decedent did not have or adopt any children and did not take any children into

Decedent's home or raise any children, except:

Name: EARL PARKER DUVAL

Date of Birth: January 15, 1951

Place of Birth: El Paso, Texas

Date of Adoption: February 14, 1951

Name of Other Parent: Jeff Davis

Date of Death: June 22, 1996

Place of Death: Dallas, Dallas County, Texas

EARL PARKER DUVAL was never married and did not

have or adopt any children and did not take any children into

his/her home. EARL PARKER DUVAL died without

leaving a will.

5. Decedent left a written Will, which has not been and will not be probated,

Select one:

[ ] the original of which is attached hereto and incorporated herein

for all purposes.

[ ] a copy of which is attached hereto and incorporated herein

for all purposes.






property:

Lot 13, Block 5, GRIDIRON ADDITION, an Addition to the City of Arlington,

Tarrant County, Texas, according to plat recorded in Volume 388-23, Page 125,

Deed Records of Tarrant County, Texas.

Property Address: 3323 JayGray Road, Arlington, Tarrant County, Texas 76017

By deed from MENARD UPSHUR and wife, KNOX UPSHUR to TITUS W.

DUVAL and wife, STARR G. DUVAL, dated April 3, 1988, recorded in Volume



at law of the said STARR G. DUVAL, Deceased, can be determined. Affiant(s) also state that the

facts are made of their own personal knowledge and they are true and correct.


TITUS W. DUVAL, “Affiant”




STATE OF TEXAS §



me on the ___ day of ______________, 20____, by TITUS W. DUVAL.

[Notary Seal]

__________________________________________



STATE OF TEXAS §



me on the ___ day of ___________________, 20____, by JACK LIPSOMB and SCURRY

LIPSOMB.

[Notary Seal]

__________________________________________



AFTER RECORDING, RETURN TO:

APPENDIX C

CAUSE NO. 2011-PR__________

IN THE ESTATE OF § IN THE PROBATE COURT

§

STARR GLASSCOCK DUVAL § NO. ______

§

DECEASED § TARRANT COUNTY, TEXAS

APPLICATION TO DETERMINE AND DECLARE HEIRSHIP

TO THE HONORABLE JUDGE OF SAID COURT:

SHELBY Z. KLEBERG BASTROP ("Applicant"), who resides at _________________________,

furnishes the following information to the Court:

1. STARR GLASSCOCK DUVAL ("Decedent") died on March 24, 2007, at

Arlington, Tarrant County, Texas.

2. No administration is pending upon Decedent's Estate and none appears necessary.

It is necessary and in the best interest of the Estate for the Court to determine who are the heirs

and only heirs of Decedent. [use only in a proceeding to determine heirship]

OR

2. An administration is pending upon Decedent's Estate in the above numbered and

entitled cause, and it is necessary and in the best interests of the Estate for the Court to determine

who are the heirs and only heirs of Decedent. [use if a regular dependent administration]

3. Applicant claims to be the owner of a part of Decedent's Estate. The names and

residences of all of Decedent's heirs, the relationship of each heir to Decedent, and the true

interest of the Applicant and of each of the heirs in the Estate of Decedent are as follows:

Names and Residences Relationship True Interest

4. At the time of Decedent's death, Decedent owned the following property:

5. Decedent was [set forth Decedent's complete marital history, e.g., (never

married)(married to and survived by ______________ on the date of death)(not married on the

date of death, but had been married and divorced from _________________ in about

________________ in _____________ and such divorced spouse of Decedent has no interest

in Decedent's property)(no married on the date of death, but had been married to

_____________ who died on __________________)].

6. [Set forth information concerning all children of Decedent, e.g., (No children

were born to or adopted by Decedent)(Only one child, ____________________ was born to or

adopted by Decedent)(Only_______________ children, ______________, were born to or

adopted by Decedent)(Other possible combinations including combinations of natural and

adopted children)].

7. All children born to or adopted by Decedent have been listed. Each marriage of

Decedent has been listed.

8. To the best of my knowledge, Decedent died intestate.

9. This Application does not omit any information required by Probate Code,

Section 49.

10. There are no debts owed by Decedent that are not secured by liens upon real

estate and there is no necessity for administration of this Estate. [Use only in a proceeding to

determine heirship]

Applicant prays that citation be issued as required by law; that an attorney ad litem be appointed to

represent Decedent's heirs whose names and whereabouts are unknown; that upon hearing hereof, this

Court determine who are the heirs and only heirs of Decedent and their respective shares and interests in

this Estate and that no necessity exists for an administration of Decedent's Estate.

Respectfully submitted,

FREESTONE, SOMERVELL, & HAYS, P.C.

_________________________________________

STERLING E. FREESTONE

1234 S. Lawyer Lane


TX State Bar No. __________

555/991-3211 phone

555/991-5312 fax

ATTORNEYS FOR APPLICANT

THE STATE OF TEXAS §

§ KNOW ALL MEN BY THESE PRESENTS:

COUNTY OF §

BEFORE ME, the undersigned authority; on this day personally appeared SHELBY Z. KLEBERG

BASTROP, and after being duly sworn, stated that:

"Insofar as is known to me, all the allegations in the foregoing Application are true in substance and in

fact and that no material fact or circumstance has, within my knowledge, been omitted from the

Application."

SHELBY Z. KLEBERGBASTROP

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, by SHELBY Z.

KLEBERG BASTROP on this _____ day of ___________________, 2011, to certify which witness my

hand and seal of office.

NOTARY PUBLIC, STATE OF TEXAS

Printed Name:

Commission Expires:

APPENDIX D

CAUSE NO. 2011-PR__________


§


§


JUDGMENT DECLARING HEIRSHIP

On this day came on to be hear the sworn Application to Determine Heirship of the Estate

of STARR GLASSCOCK DUVAL, Deceased ("Decedent"), wherein SHELBY Z. KLEBERG

BASTROP is the Applicant, and Decedent's living heirs (whose names are known) are

Respondents, and Decedent's living heirs whose names and/or whereabouts are unknown and

heirs suffering legal disability are Defendants, and it appears to the Court, and the Court so finds,

that all parties interested in the Estate of Decedent have been made parties to the Application,

have filed written waivers of service of citation, have appeared and answered herein, or have

been duly and legally served with citation as required by law; that the Court appointed an

attorney ad litem to appear and answer and to represent Defendant and such attorney ad litem did

so appear and filed and answer for Defendants; that this Court has jurisdiction of the subject

matter and all persons and parties; that the evidence presented and admitted fully and

satisfactorily proves each and every issue presented to the Court; that Decedent died intestate and

that the heirship of Decedent has been fully and satisfactorily proved as well as the identity of

the nature of Decedent's property as being separate or community and the interest and shares of

each of the heirs therein; and that no administration is necessary.

The Court finds and it is ORDERED by the Court that the names and places of residence

of the heirs of Decedent and their respective shares and interests in the real and personal property

of Decedent are as follows:

Name and Place

of Residence

Share and Description of Real

Property

Share and Description of

Personal Property

[Set forth a complete listing of the heirs and beneficiaries, their place of residence, their shares and

interests in and description of real property to which each is entitled, and their shares and interests in and

description of personal property to which each is entitled.]

It is ORDERED that the attorney ad litem appointed to represent the interests of the

Defendants is allowed a fee of $_______________ to be paid out of the assets of Decedent.

The Court finds that there exists no necessity for administration of the Estate of

Decedent, no is ordered, and upon payment of all costs of Court no further proceedings be had in

this cause.

SIGNED this ____ day of November, 2011.

JUDGE PRESIDING

Approved:


_________________________________________



555/991-3211 phone

555/991-5312 fax


Attorney Ad Litem for Defendants

APPENDIX E

CAUSE NO. 2011-PR__________


§


§


APPLICATION FOR PROBATE OF WILL AS A MUNIMENT OF TITLE


KING LEE LIBERTY, Applicant, furnishes the following information to the Court for the probate

of the written Will of STARR GLASSCOCK DUVAL, Deceased, as a Muniment of Title.

1. Applicant is an individual interested in this Estate. Applicant's Social Security number is

xxx-xx-1234, and Applicant resides at 2010 Corey Castle Court, Arlington, Tarrant County, Texas

76012. Applicant is attempting to purchase real property from the heirs of STARR GLASSCOCK

DUVAL, Deceased.

2. Decedent, STARR GLASSCOCK DUVAL, died on March 24, 2007, in Tarrant

County, Texas, at the age of forty-nine (49) years. Four (4) years have elapsed from the date of her death,

but Applicant would show the Court that he was not in default in failing to file Decedent's Will within

four years of Decedent's death and is trying to cure the title to the real property referenced herein by this

action.

3. This Court has jurisdiction and venue because Decedent was domiciled and had a fixed

place of residence in this County on the date of death.

4. Decedent’s heirs-at-law include her three children from her first marriage to AUSTIN P.

KLEBERG-- BAYLOR J. KLEBERG, SHELBY Z. KLEBERG BASTROP, and GAINES FRIO

KLEBERG, Deceased. BAYLOR J. KLEBERG was born July 13, 1977, and died on November 19,

1996, in Collin County, Texas. He was survived by his wife, BOWIE A. KLEBERG who resides at

1234 Red River Drive, Allen, Texas 75002. That the said children were the only children of Decedent;

that Decedent did not have or adopt any other children and did not take any other children into

Decedent’s home or raise any other children except: NONE

5. The Decedent owned real and/or personal property, or a probable value in excess of

$10,000.00.

6. Decedent left a valid written Will dated March 19, 1995, which was never revoked and

is filed herewith.

7. The subscribing witnesses to the Will are xxxxxxx xxxxxx (last known address 1234

Last Address Center Center, Abilene, Texas 79602); and xxxxxxx xxxxxx (1234 Last Address Center

Center, Abilene, Texas 79602). The Will is self proved in the manner prescribed by law.

8. No children were born to or adopted by Decedent after the date of the Will.

9. Decedent was married two (2) times. The first marriage was to AUSTIN P. KLEBERG

at a date and time unknown, in Texas, which marriage ended in divorce on or about 1976 or early 1977.

The second marriage was to TITUS WINKLER DUVAL on November 16, 1981, in Tarrant County,

Texas, which marriage ended with the death of TITUS WINKLER DUVALL on May 15, 2010.

10. Decedent's Will does not name the State of Texas, any governmental agencies of the State

of Texas or any charitable organizations as a devisee.

11. There are no debts owed by Decedent and there is no necessity for any administration of

this Estate.

12. Applicant asks the Court not to require Applicant to file a sworn statement stating

specifically the terms of the Will that have been fulfilled and the terms of the Will that have been

unfulfilled.

WHEREFORE, Applicant prays that citation be issued as required by law to all persons

interested in this Estate; that the Will be admitted to probate as a Muniment of Title and without any

administration thereon and that all other Orders be entered as the Court may deem proper.



_________________________________________


1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax


APPENDIX F

CAUSE NO. 2011-PR__________


§


§

DECEASED § TARRANT COUNT TEXAS

ORDER ADMITTING WILL TO PROBATE AS A MUNIMENT OF TITLE

On the _______ day of ______________________, 2011, came on to be heard the Application

for Probate of Will as a Muniment of Title filed by KING LEE LIBERTY, in the Estate of STARR

GLASSCOCK DUVAL, Deceased.

The Court, having heard the evidence and having reviewed the Will and the other documents filed

herein, finds that the allegations contained in the Application are true; that notice and citation have been

given in the manner and for the length of time required by law; that Decedent is dead and that four (4)

years have elapsed since the date of Decedent's death; that the Applicant herein was not in default in

failing to file the Will of Decedent for probate within four (4) years of Decedent’s death and that

Applicant does have an interest herein to cure title to real estate he is attempting to purchase from the

Estate of STARR GLASSCOCK DUVAL, deceased; that all of the necessary Section 128B notices, or

waivers of such notice, have been given and filed with the Court or accepted under Section 128B(d); that

this Court has jurisdiction and venue of the Decedent's Estate; that Decedent left a Will dated March 19,

1990, executed with the formalities and solemnities and under the circumstances required by law to make

it a valid Will; that on such date Decedent had attained the age of eighteen (18) years and was of sound

mind; that such Will was not revoked by Decedent; that no objection to or contest of the probate of such

Will has been filed; that all of the necessary proof required for the probate of such Will has been made;

that such Will is entitled to probate; that Decedent's Will does not name the State of Texas, any

governmental agencies of the State of Texas or any charitable organizations as a devisee; that there are no

unpaid debts owing by the Estate of Decedent other than those secured by liens on real estate; that there is

no necessity for the administration of this Estate.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that such Will is admitted to

probate as a Muniment of Title only, and the Clerk of this Court is ORDERED to record the Will,

together with the Application in the Minutes of this Court, and this Order shall constitute sufficient legal

authority to all persons owing any money, having custody of any property, or acting as a registrar or

transfer agent of any evidence of interest, indebtedness, property or right belonging to the Estate, and to

persons purchasing from or otherwise dealing with the Estate, for payment or transfer by them to the

persons named in such Will as the beneficiaries therein; and that the beneficiaries entitled to such

property under such Will shall be entitled to deal with the properties to which he or she is entitled in the

same manner as if the record of title thereof were vested in his or her name.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Affidavit of

Compliance with the terms of said Will required by Section 89 of the Texas Probate Code is hereby

waived.

SIGNED this _________ day of November, 2011.

JUDGE PRESIDING

APPENDIX G

CAUSE NO. 2011-PR__________


§


§


NOTICE UNDER PROBATE CODE SECTION 128B

TO: BOWIE A. KLEBERG at 1234 Red River Drive, Allen, Texas 75002

Application for Probate of Will as Muniment of Title was filed on November ___, 2011

in Probate Court No. ____ of Tarrant County, Texas under Cause No. 2011-PR____ regarding

the above-styled and numbered estate.

In accordance with Probate Code Section 128B, notice is hereby given that:

1. STARR GLASSCOCK DUVAL 's property will pass to STARR GLASSCOCK

DUVAL's heirs if the will is not admitted to probate; and

2. the person offering STARR GLASSCOCK DUVAL's will for probate may not be

in default for failing to present the will for probate during the four-year period

immediately following STARR GLASSCOCK DUVAL 's death.



_________________________________________


1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax


APPENDIX H

CAUSE NO. 2011-PR__________


§


§


AFFIDAVIT OF SHELBY Z. KLEBERG BASTROP

WAIVER OF NOTICE UNDER PROBATE CODE SECTION 128B

BEFORE ME, the undersigned authority, personally appeared SHELBY Z. KLEBERG

BASTROP, and after by me being duly sworn, states upon oath the following:

1. "My name is SHELBY Z. KLEBERG BASTROP. I am over the age of eighteen (18)

years and am competent to make this affidavit. The facts stated in this affidavit are within my personal

knowledge and are true and correct.

2. “I am one of two (2) surviving children of STARR GLASSCOCK DUVAL, Deceased,

and as such am one of the intestate successors of STARR GLASSCOCK DUVAL, Deceased. My

mother, STARR GLASSCOCK DUVAL, died on March 24, 2007, in Tarrant County, Texas, at the age

of forty-nine (49) years. Her last will and testament is being offered for probate as a muniment of title in

order to sell my mother’s real property herein described.

3. My brother, BAYLOR J. KLEBERG, died on November 19, 1996. He was married at the time

he died to BOWIE A. KLEBERG. His Will was probated in Cause No. 2011-PR_______, Collin

County, Texas.

4. My brother, and GAINES FRIO KLEBERG, was born on January 9, 1980, and I have

not seen nor heard from him in approximately ten (10) years. The last that I heard, he was homeless

somewhere in the Houston area perhaps.

5. “KING LEE LIBERTY (“the Applicant”) is attempting to purchaser of the real property

from the Estate of STARR GLASSCOCK DUVAL, Deceased. My father had the will in his

possession, and it was only found after my father passed away last fall. I am in full agreement with the

proposed sale. The said property is legally described as follows, to-wit:

LOT 1, BLOCK 1, xxxxxx ADDITION TO THE CITY OF FORT WORTH,

TARRANT COUNTY, TEXAS, ACCORDING TO PLAT RECORDED IN VOLUME 388-

24, PAGE 6, DEED RECORDS OF TARRANT COUNTY, TEXAS.

6. "Decedent was domiciled and had a fixed place of residence in this County on the date of

death.

7. “That the Applicant, KING LEE LIBERTY, is an individual interested in this Estate and

is trying to cure title to the real property referenced herein.

8. “I have no objection to the Applicant, KING LEE LIBERTY, offering the Last Will and

Testament of STARR GLASSCOCK DUVAL, Deceased, dated March 19, 1995, for Probate as a

Muniment of Title. I understand that Decedent’s property will pass to Decedent’s heirs if the Will is not admitted to

probate.

9. “More than four (4) years have elapsed from the date of her death. That the Applicant,

STARR GLASSCOCK DUVAL, is not in default for failing to present the Will for probate during the

four-year period immediately following Decedent’s death and is trying to cure the title to the real property

referenced herein by this action.

10. “That I am making this Affidavit in compliance with Section 128B of the Texas Probate

Code, and certify the above statements to be true and correct.”

KING LEE LIBERTY

SUBSCRIBED AND SWORN TO BEFORE ME by the said KING LEE LIBERTY, this

_________ day of November, 2011, to certify which witness my hand and seal of office.


Printed Name:

My Commission Expires:


_________________________________________


1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax


APPENDIX I

Sec. 145A. GRANTING POWER OF SALE BY AGREEMENT. In a situation in which a

decedent does not have a will or a decedent's will does not contain language authorizing the personal

representative to sell real property or contains language that is not sufficient to grant the representative

that authority, the court may include in an order appointing an independent executor under Section 145 of

this code any general or specific authority regarding the power of the independent executor to sell real

property that may be consented to by the beneficiaries who are to receive any interest in the real property

in the application for independent administration or in their consents to the independent administration.

The independent executor, in such event, may sell the real property under the authority granted in the

court order without the further consent of those beneficiaries.

Sec. 145B. INDEPENDENT EXECUTORS MAY ACT WITHOUT COURT APPROVAL.

Unless this code specifically provides otherwise, any action that a personal representative subject to court

supervision may take with or without a court order may be taken by an independent executor without a

court order. The other provisions of this part are designed to provide additional guidance regarding

independent administrations in specified situations, and are not designed to limit by omission or otherwise

the application of the general principles set forth in this part.

Sec. 145C. POWER OF SALE OF ESTATE PROPERTY. (a) Definition. In this section,

"independent executor" does not include an independent administrator.

(b) General. Unless limited by the terms of a will, an independent executor, in addition to any

power of sale of estate property given in the will, and an independent administrator have the same power

of sale for the same purposes as a personal representative has in a supervised administration, but without

the requirement of court approval. The procedural requirements applicable to a supervised administration

do not apply.

(c) Protection of Person Purchasing Estate Property. (1) A person who is not a devisee or heir is

not required to inquire into the power of sale of estate property of the independent executor or

independent administrator or the propriety of the exercise of the power of sale if the person deals with the

independent executor or independent administrator in good faith and:

(A) a power of sale is granted to the independent executor in the will;

(B) a power of sale is granted under Section 145A of this code in the court order

appointing the independent executor or independent administrator; or

(C) the independent executor or independent administrator provides an affidavit,

executed and sworn to under oath and recorded in the deed records of the county where the property is

located, that the sale is necessary or advisable for any of the purposes described in Section 341(1) of this

code.

(2) As to acts undertaken in good faith reliance, the affidavit described by Subsection

(c)(1)(C) of this section is conclusive proof, as between a purchaser of property from an estate, and the

personal representative of the estate or the heirs and distributees of the estate, with respect to the authority

of the independent executor or independent administrator to sell the property. The signature or joinder of

a devisee or heir who has an interest in the property being sold as described in this section is not

necessary for the purchaser to obtain all right, title, and interest of the estate in the property being sold.

(3) This section does not relieve the independent executor or independent administrator

from any duty owed to a devisee or heir in relation, directly or indirectly, to the sale.

(d) No Limitations. This section does not limit the authority of an independent executor or

independent administrator to take any other action without court supervision or approval with respect to

estate assets that may take place in a supervised administration, for purposes and within the scope

otherwise authorized by this code, including the authority to enter into a lease and to borrow money.

APPENDIX J

CAUSE NO. 2011-PR__________


§


§


APPLICATION FOR LETTERS OF INDEPENDENT ADMINISTRATION

PURSUANT TO §145(c)(or 145(d) or 145(e)), TEXAS PROBATE CODE


Your Applicants, _______________ and _____________________, being all of the distributees

of the Estate of STARR GLASSCOCK DUVAL, Deceased, respectfully show to the Court the

following:

1. _________________ and ______________ reside and are domiciled in ___________

County, ____________ and are the surviving parents of Decedent.

2. Decedent, ___________________, died at the age of _______ (____) on

_________________, ______, in _____________, _________ County, _________.

3. Four years have not elapsed since the death of the decedent and the filing of this

Application.

4. At and before the date of death, Decedent resided and was domiciled in the

_____________ County, _________.

5. At the time of death, the said Decedent was seized and possessed of real and personal

property located in _______________ County, ___________ and elsewhere of a probable

value in excess of $____________.

Allegations pursuant to §145(c) or §145(d):

1. Decedent left a valid written Will ("Will") dated _______________ which was never

revoked and is filed herewith.

2. The subscribing witnesses to the Will were __________________ and

_________________, both of whom reside in _____________ County, _________. The

Will was made self-proved in the manner provided by law.

3. Neither the State of _______________, nor any agency thereof, nor any charitable

organization is named as a devisee by the Will.

4. No child or children were born to or adopted by Decedent after the date of the Will.

5. Decedent was never divorced.

6. Decedent's will named Applicant ____________________________ to serve without

bond or other security as Executor. Decedent's will fails to provide for an independent

administration of said estate. (§145(e)) or

7. Decedent's will named ____________________ to serve without bond or other security

as Independent Executor, and __________________ to serve without bond or other

security as Successor Independent Executor in the event of the simultaneous deaths of

__________________ and __________________. However, __________________

predeceased Decedent __________________ survives. Decedent's will fails to provide

for the appointment of an Independent Executor in such situation. (§145(d))

8. Applicants, being all of the heirs of the Decedent and all of the distributees under said

Will of the said Decedent, agree that it is advisable to have an independent administration

of said estate and request the Court to order that there be no action in any Court in

relation to the settlement of said estate other the return of an inventory, appraisement and

list of claims of the Estate.

9. Applicants collectively, designate __________________ to serve as Independent

Executor (§145(c))

Independent Administrator with Will Annexed (§145(d))

of said estate. __________________ is qualified and is not disqualified by law to act as

Independent Executor/Independent Administrator with Will Annexed.

10. A necessity exists for administration of this estate because a Federal Estate Tax Return

must be prepared and filed on this estate and because the estate should be distributed

among the heirs.

11. Applicants, and each of them, hereby enter an appearance in this proceeding, and waive

the issuance and service on them of citation and notice.

Allegations pursuant to §145(e):

1. Decedent died intestate at the age of ________________ on ________________, ________, in

________________, ___________ County, __________.

2. At and before the date of death, Decedent resided and was domiciled in the ________________

County, _________.

3. Four years have not elapsed since the death of the decedent and the filing of this Application.

4. A necessity exists for administration of this estate because a Federal Estate Tax Return must be

prepared and filed on this estate and because the estate should be distributed among the heirs.

5. Your Applicants, being all of the heirs of Decedent, agree that it is advisable to have an

independent administration of said estate and request the Court to order that there be no action in

any Court in relation to the settlement of said estate other the return of an inventory, appraisement

and list of claims of the Estate.

6. Applicants collectively designate __________________ to serve as Independent Administrator of

said estate. The said __________________ is qualified and is not disqualified by law to act as

Independent Administrator.

7. No children were born to Decedent.

8. Decedent was never married nor divorced.

9. Applicants, and each of them, hereby enter an appearance in this proceeding, and waive the

issuance and service on them of citation and notice.

(§145(c) & §145(d))

WHEREFORE, PREMISES CONSIDERED, Applicants pray that citation issue as required by

law; and that upon a hearing hereof, the Court enter an order determining that the Applicants herein

constitute all of the distributees of the estate of Decedent and that the Will be admitted to probate, that

Letters Testamentary (§145(c)) (or) Letters of Independent Administration with Will Annexed (§145(d))

be issued to __________________; that it be ordered that no other action in this Court be had in the

settlement of said Estate other than the return of an Inventory, Appraisement and List of Claims of the

Estate (§145(e)), and that such other and further orders be made as to the Court may seem proper.

(§145(e))

WHEREFORE, PREMISES CONSIDERED, your Applicants pray that citation be issued as

required by law, and that upon a hearing hereof, the Court enter an order determining that the Applicants

herein constitute all of the heirs of Decedent and all of the distributees of his estate, and their respective

shares and interests; that __________________ be appointed Independent Administrator of this estate;

that Letters of Independent Administration be issued to the said __________________; that it be ordered

that no other action in this Court be had in the settlement of said Estate other than the return of an

Inventory, Appraisement and List of Claims of the Estate, and that such other and further orders be made

as to the Court may seem proper.



_________________________________________


1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax


STATE OF _______________ )

COUNTY OF _____________ )

BEFORE ME, the undersigned Notary Public, on this day personally appeared

__________________ and __________________ known to me to be the persons whose names are

subscribed to the foregoing Application for Letters of Independent Administration, who, being by me first

duly sworn, did upon their individual oaths state that:

1. I have read the foregoing Application for Letters of Independent Administration;

2. All of the allegations in the foregoing Application are true in substance and in fact;

3. No material fact or circumstance relating to the identity of the heirs and distributees of the said

__________________ or in any way involving the matters to be determined in this proceeding

has, within my knowledge, been omitted from said Application.

__________________ __________________

SWORN TO AND SUBSCRIBED before me by __________________ and

__________________, this ______ day of ____________________, ______, to certify which witness my

hand and seal of office.

Notary Public, State of

Texas

APPENDIX K-1

CAUSE NO. 2011-PR__________


§


§


APPLICATION FOR APPOINTMENT OF SUCCESSOR INDEPENDENT

EXECUTRIX AND ISSUANCE OF NEW LETTERS TESTAMENTARY

IN ACCORDANCE WITH § 220 OF THE TEXAS PROBATE CODE


SHELBY Z. KLEBERG BASTROP, Applicant, furnishes the following information to

the Court for the appointment as Successor Independent Executrix of the Estate of STARR

GLASSCOCK DUVAL, Deceased, in accordance with section 220 of the Texas Probate Code

and for issuance of new Letters Testamentary:

1. Applicant, SHELBY Z. KLEBERG BASTROP, is an individual interested in

this Estate and is domiciled in and residing at ___________________________, Fort Worth,

Tarrant County, Texas.

2. TITUS WINKLER DUVALL was appointed Independent Executrix of the

Estate of STARR GLASSCOCK DUVAL on __________________, ______ in Cause No.

2011-PR________ in Probate Court ___ of TARRANT County, Texas. TITUS WINKLER

DUVALL died on ______________, __________. Please see a copy of the Death Certificate

attached as Exhibit "A" hereto.

3. The Will of STARR GLASSCOCK DUVAL named SHELBY Z. KLEBERG

BASTROP to serve without bond or other security as Successor Independent Executrix of

Decedent's Will, in which capacity Applicant would not be disqualified by law from serving as

such or from accepting Letters Testamentary, and Applicant would be entitled to such Letters.

Applicant requests that the Court name SHELBY Z. KLEBERG BASTROP to serve without

bond or other security as Successor Independent Executrix of Decedent's Will, in which capacity

Applicant would not be disqualified by law from serving as such or from accepting Letters

Testamentary, and Applicant would be entitled to such Letters.

4. No action has occurred to close Decedent’s estate, and the estate remains open.

5. A necessity exists for the appointment of SHELBY Z. KLEBERG BASTROP as

Successor Independent Executrix for the administration of this Estate. There is a bank account

that remains in the name of SHELBY Z. KLEBERG BASTROP that needs to be distributed.

The bank is requiring updated Letters Testamentary before the bank will disburse. [ list all

reasons why further administration is necessary]

WHEREFORE, Applicant prays that SHELBY Z. KLEBERG BASTROP be

appointed as the Successor Independent Executrix in this Estate without citation or notice; that

new Letters Testamentary be issued to Applicant, and that all other Orders be entered as the

Court may deem proper.



_________________________________________


1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax


APPENDIX K-2

CAUSE NO. 2011-PR__________


§


§


PROOF OF NEED FOR CONTINUATION OF ADMINISTRATION

FOR THE ESTATE OF STARR GLASSCOCK DUVAL, DECEASED

On this day, GAINES FRIO KLEBERG, brother of Applicant, personally appeared in Open Court, and

after being duly sworn, stated the following:

1. "My name is GAINES FRIO KLEBERG. I have an interest in this Estate and

am domiciled in and reside at ____________________________. SHELBY Z. KLEBERG

BASTROP is my sister, one of the heirs of the Estate of STARR GLASSCOCK DUVAL,

Deceased, and the Applicant herein. SHELBY Z. KLEBERG BASTROP has an interest in this

Estate and is domiciled in and resides at _______________________. Because of the out of

state residency of SHELBY Z. KLEBERG BASTROP, she has requested that I appear in Court

on her behalf.

2. TITUS WINKLER DUVALL was appointed Independent Executrix of the

Estate of STARR GLASSCOCK DUVAL, Deceased, on __________, ______, in Cause No.

_______________, Probate Court ___ of ___________ County, _______. TITUS WINKLER

DUVALL died on _____________, ______. A copy of the Death Certificate was submitted

with the Application.

3. A necessity exists to continue the administration of the Estate of STARR

GLASSCOCK DUVAL, Deceased. There is a bank account that remains in the name of

STARR GLASSCOCK DUVAL that needs to be distributed. The bank is requiring updated

Letters Testamentary before the bank will disburse the funds.

4. The Last Will and Testament of STARR GLASSCOCK DUVAL named

SHELBY Z. KLEBERG BASTROP to serve without bond or other security as Alternate

Independent Executrix of Decedent's Will, in which capacity SHELBY Z. KLEBERG

BASTROP would not be disqualified by law from serving as such or from accepting Letters

Testamentary, and Applicant would be entitled to such Letters."

GAINES FRIO KLEBERG

SUBSCRIBED AND SWORN TO BEFORE ME by the said GAINES FRIO KLEBERG

on this _____ day of _________________, 2011, to which witness my hand and seal of office.


APPENDIX K-3

CAUSE NO. 2011-PR__________


§


§


APPOINTMENT OF RESIDENT AGENT

The undersigned has and does by these presents appoint ________________________,

whose address is ________________________, ___________, ______ _______, to be resident

agent to accept service of process in all actions or proceedings with respect to this Estate

pursuant to the provisions of Section 78(d) of the Texas Probate Code and in anticipation of the

appointment of the undersigned as Independent Executor of this Estate.

SIGNED this _____ day of ___________________, ______.

____________________________

STATE OF §

COUNTY OF §


______________________________, known to me to be the person whose name is subscribed

to the foregoing instrument, and acknowledged to me that he executed the same for the purposes

and consideration therein expressed.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this ____ day of

__________________, ______.

NOTARY PUBLIC, STATE OF

APPENDIX K-4

CAUSE NO. 2011-PR__________


§


§


OATH OF SUCCESSOR INDEPENDENT EXECUTRIX

I do solemnly swear that the writing which had been offered for probate, in the above-

entitled and numbered proceeding, was the Last Will and Testament of

_____________________________, Deceased, so far as I know or believe, and that I will well

and truly perform all of the duties of Successor Independent Executrix without bond of the Estate

of _________________________, Deceased.

____________________________

SUBSCRIBED AND SWORN TO BEFORE ME by the said

________________________ this ____ day of _____________, ______, to certify which

witness my hand and seal of office.

NOTARY PUBLIC, STATE OF


________________________________



555/991-3211 phone

555/991-5312 fax


APPENDIX K-5

CAUSE NO. 2011-PR__________

IN THE ESTATE OF § IN THE PROBATE

COURT

§


§


ORDER GRANTING APPLICATION FOR APPOINTMENT OF

SUCCESSOR INDEPENDENT EXECUTRIX AND ISSUANCE OF

NEW LETTERS TESTAMENTARY IN ACCORDANCE WITH

§ 220 OF THETEXAS PROBATE COURT

On this day came on to be heard the Application for Appointment of Successor

Independent Executrix and Issuance of New Letters Testamentary In Accordance with § 220 of

the Texas Probate Code filed by SHELBY Z. KLEBERG BASTROP in the Estate of STARR

GLASSCOCK DUVAL Deceased.

The Court, having heard the evidence and having reviewed the Will and the other

documents filed herein, finds that the allegations contained in the Proof are true; that TITUS

WINKLER DUVALL was appointed Independent Executrix of the Estate of STARR

GLASSCOCK DUVAL, Deceased, on ____________, _____ in Cause No.2011-PR______ in

Probate Court of TARRANT County, Texas; that TITUS WINKLER DUVALL died on

_____________, ______; that all of the necessary proof required for the appointment of a

successor independent executrix of such Estate has been made; that in said Will, Decedent

named SHELBY Z. KLEBERG BASTROP as Successor Independent Executrix to serve

without bond, who is duly qualified and not disqualified by law to act as such, and to receive

Letters Testamentary; and that a necessity exists for the continued administration of this Estate.

IT IS ORDERED, ADJUDGED AND DECREED that no bond or other security is

required and that after the taking and filing of the Oath required by law, Letters Testamentary

shall be issued to SHELBY Z. KLEBERG BASTROP, who is appointed Successor

Independent Executrix of Decedent's Will and Estate, and no other action shall be had in this

Court.

SIGNED this _____ day of November, 2011.

JUDGE PRESIDING

APPENDIX L

CAUSE NO. 2011-PR__________


§


§


APPLICATION FOR COURT-APPROVED SALE OF REAL PROPERTY


COMES NOW SHELBY Z. KLEBERG BASTROP, Administrator of the Estate of STARR

GLASSCOCK DUVAL, Deceased (“Applicant”) and files this Application for Court-Approved Sale of

Real Property and furnishes the following information to the Court:

1. The Inventory, Appraisement, and List of Claims of this Estate has been filed and

approved by this Court.

2. A full legal description of the real property (the “Property”) sought to be sold and a

description of the Estate’s ownership interest in the Property is attached to this application, as Exhibit

“A”, and made a part hereof for all purposes.

3. A statement, verified by affidavit, showing fully and in detail the condition of the Estate,

the charges and claims that have been approved or established by suit or that have been rejected and may

yet be established, the amount of each claim, the property of the estate remaining on hand and liable for

the payment of those claims, and all other facts tending to show the necessity and advisability of this

proposed sale, is attached it his Application as Exhibit “B” and made a part hereof for all purposes.

4. It is deemed to be in the best interest of the Estate to sell the Estate’s interest in the

Property, and it is necessary and advisable to see the Estate’s interest in the Property in order to pay

expenses of administration

5. It will be in the best interest of the Estate for the Property to be sold at a private sale for

cash.

Applicant requests that citation be issued to all persons interested in this Estate, as required by

law, and that the Court sign an order authorizing Applicant to sell the Estate’s interest in the Property

described in Exhibit “A” at a private sale on the terms set forth above, and such other orders as the Court

may deem proper.



_________________________________________


1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax

ATTORNEY FOR APPLICANT

APPENDIX M

CAUSE NO. 2011-PR__________


§


§


ORDER PERMITTING SALE OF REAL PROPERTY

On this day the Court considered the Application For Sale of Real Property and finds that

citation has been issued and served as required by law; that the Application is accompanied by an

Exhibit, verified by affidavit, showing the condition of the Estate, and the Application and

Exhibit meet all requirements by law; ; that no hearing was requested or necessary; that the real

property to be sold (“the Property”) is fully described in Exhibit “A” attached to and made a part

of this Order; that the general bond is sufficient as required by law; that the Application should

be granted and the sale of the Property should be made at private sale; that it is in the best

interest of the Estate for the Property to be sold; that the sale is necessary and advisable in order

to pay expenses of administration and to make a distribution to all heirs.

IT IS ORDERED that the Property described shall be sold at a private sale for cash.

IT IS ORDERED that no additional bond shall be required at this time, and that after the

sale has been made a Report of Sale shall be filed and returned in accordance with law.

SIGNED this ____ day of ______________, 2011.

_________________________________

Judge Presiding

APPENDIX N

CAUSE NO. 2011-PR__________


§


§


REPORT OF SALE OF REAL PROPERTY


COMES NOW SHELBY Z. KLEBERG BASTROP, Administrator of the Estate of

STARR GLASSCOCK DUVAL, Deceased and would respectfully report to the Court as

follows:

1. On ___ ________, the Court signed an Order Authorizing Sale of Real Property.

2. A description of the property sold is attached and designated as Exhibit “A”.

3. The property was sold at a private sale on the ____ day of _______, 2011.

4. The name of the purchaser is ________________.

5. The total sales price for the property sold was $___________, less estimated costs

and expenses of sale in the sum of $_____________, leaving a net sale price of $____________ .

6. This sale is in the best interest of the Estate and was made as specified in the

contract, a copy of which is attached as Exhibit “B”, for cash.

7. The purchaser is ready to comply with the Order of Sale of Real Property.

8. All of the facts set forth herein are true and correct.



_______________________________ _________________________________________

SHELBY Z. KLEBERG BASTROP STERLING E. FREESTONE

Administrator 1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax

ATTORNEY FOR APPLICANT

SUBSCRIBED AND SWORN TO BEFORE ME by SHELBY Z. KLEBERG

BASTROP this ____ day of November, 2011, to certify which witness my hand and seal of

office.

_______________________________________

Notary Public in and for the State of Texas

Insert Certificate of Service if situation warrants

APPENDIX O

CAUSE NO. 2011-PR__________


§


§


ORDER CONFIRMING SALE OF REAL PROPERTY

On this day the Court heard and considered the Report of Sale of Real Property (the

“Report”). The Court finds that at least five days have expired since the filing of said Report;

that the general bond is sufficient to protect the Estate and is in compliance with the Court’s

previous Order of Sale of Real Property and with the law; and that the real property has been

sold at private sale for a fair price and the sale was in the best interest of the estate and was

properly made and in conformity with the law. The property is described on the page attached

hereto as Exhibit “A”, made a part of this decree.

IT IS ORDERED AND DECREED that the sale of the real property described in the

Report is hereby APPROVED and CONFIRMED and conveyance of the property is authorized

upon compliance by the purchaser with the terms of sale, which sale is to be for cash.

SIGNED this the ____ day of ____________________, 2011.

_______________________________________

JUDGE PRESIDING

APPENDIX P

CAUSE NO. 2011-PR__________


§

TRINITY YOAKUM KLEBERG § NO. ______

§


APPLICATION FOR § 889 SALE OF REAL PROPERTY

OF A MINOR BY AN ADOPTIVE PARENT


BOWIE A. KLEBERG, Applicant, furnishes the following information to the Court for an order to sell

the interest of TRINITY YOAKUM KLEBERG, a minor, in real property without being appointed

guardian:

1. Applicant, BOWIE A. KLEBERG, is the surviving, adoptive parent of TRINITY

YOAKUM KLEBERG, the Minor. Both Applicant and Minor are domiciled in and residing at

_____________________________, Fort Worth, Tarrant County, Texas.

2. Minor, TRINITY YOAKUM KLEBERG, owns an undivided one-forth (1/4) interest in

the real property commonly known as ______________________, _______________, _____________

County, ________________ (hereinafter the "Real Property") by virtue of the Statutes of Descent and

Distribution of the State of Texas. Minor's adoptive father, __________________________, died

intestate on ____________________, __________, no Last Will and Testament having been offered for

probate, and there has been no administration taken out on her Estate, none being necessary. The

Affidavit of Heirship of ____________________ evidences her adopted, minor daugher 's undivided one-

forth (1/4) ownership interest in the Real Property.

3. The net value of the interest does not exceed $100,000.00.

4. This Court has jurisdiction and venue because the Minor's surviving, adoptive parent,

BOWIE A. KLEBERG, has custody of the Minor and resides in Fort Worth, Tarrant County, Texas.

5. The legal description of the Real Property is as follows:

6. The purchaser of the Real Property is ___________________. Attached as Exhibit "1" is

a true and correct copy of the One to Four Family Residential Contract (Resale). Attached as Exhibit "2"

is a true and correct copy of the Commitment for Title issued by Rattikin Title Company in connection

with the sale.

7. The sale of the interest of Minor is for cash.

8. All funds received by BOWIE A. KLEBERG on behalf of Minor shall be used for the

use and benefit of the Minor.

9. It is in the best interest of the Minor that the Court order the sale of the Real Property.

WHEREFORE, Applicant prays that the Court find that this sale is in the best interest of the

Minor; that an order be issued for Applicant to sell the interest of Minor in the Real Property to Purchaser

without the appointment of a guardian; that the proceeds of the sale belonging to Minor be paid into the

Court registry; and that all other relief be granted and Orders be entered as the Court may deem proper.



_________________________________________


1234 S. Lawyer Lane



555/991-3211 phone

555/991-5312 fax


VERIFICATION

STATE OF TEXAS §


BEFORE ME, the undersigned Notary Public, on this day personally appeared BOWIE A.

KLEBERG known to me to be the person whose name is subscribed to the foregoing Application, who,

being by me first duly sworn, did upon her individual oath state that:

1. I have read the foregoing APPLICATION FOR § 889 SALE OF REAL PROPERTY OF

A MINOR BY AN ADOPTIVE PARENT;

2. All of the allegations in the foregoing Application are true in substance and in fact; and

3. No material fact or circumstance relating to or in any way involving the matters to be

determined in this proceeding has, within my knowledge, been omitted from said Application.

BOWIE A. KLEBERG

SWORN TO AND SUBSCRIBED before me by BOWIE A. KLEBERG, this ______ day of

November, 2011, to certify which witness my hand and seal of office.

NOTARY PUBLIC STATE OFTEXAS

Documents

ANOTHER DEAD SELLER? HOW TO KEEP YOUR DEAL ALIVE