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Answers Continued...
12/28/08
Question (TX):
My remaining parent recently passed away. My father did
not leave a valid will but let all the kids know his
wishes. During his last year alive, my father was
transferring a property he owned to my two brothers and
me. One of my brother’s is married to a wife who is a
real estate agent and was handling the transfers of
deed. During this process my Dad passed away and she had
the deed listed with her husband as the only benefactor.
My brother claims my
Dad changed his mind 3 days prior to his death at the
hospital and only wanted him to have it. What are my
recourses, if any?
Answer: This is
the classic estate fight. The children fight like cats
and dogs over what the parent wanted to occur. There is
no hard written evidence, so it is a swearing match that
a jury will have to decide. These fights are traumatic,
expensive and very time consuming. The fight will go
back to the third grade level, or earlier (i.e. “He
said, she said, and nobody agrees on anything.”). Find a
lawyer experienced in estate and probate litigation.
Question (TX): I
and my ex were both in the military. We married in Texas
and divorced in Georgia. The divorce decree stated the
ex would sign a Quit Claim Deed and gave me sole
possession of the house. She never signed and refused to
sign a quit claim deed and I never did any more about
it. I have no idea where my ex is living at these days.
I still owe 30k on this property. My question is how do
I sell/refinance this property when my ex is still
listed as an owner of the property?
Answer: You need
to go to the attorney that handled your divorce and see
if the decree properly awarded the house to you, such
that you now have title. If not, and the ex-wife refuses
to sign, there is a contempt of court action you can
pursue to get her signature. You will definitely need
legal help, however. Talk frankly with your attorney
about fees, but don't try to save a few bucks to lose
more in the long run.
Question (TX):
About 10 years ago my son’s mother (my ex-wife) along
with her two sisters inherited a vacation home/lot 1/3
equally from their deceased parents. Shortly thereafter
1 sister bought out the other giving her a 2/3 interest
and my son’s mother passed away. Her share ended up in
testamentary trust controlled by his stepfather. At the
same time the 2/3 sister (for clarification - my sons
Aunt) and the stepfather started renting the house out
when they were not using it. Eventually the 2/3 sister
wanted the stepfather out and suggested that he deed his
share to my son. My son emphatically stated to the 2/3
sister and their attorney that he would pay his 1/3 of
the property taxes but that he did not want to assume
the month-to-month liabilities/maintenance of house. The
2/3 sister said not to worry and that she would cover
all of the expenses until she died. She went so far as
to have an agreement drawn up by that attorney stating
this but never signed it. The attorney even stated in an
e-mail to my son that she would not have the deed
transferred until the agreement was signed. The bottom
line is this: the agreement was never signed, the
attorney transferred the deed and the 2/3 sister decides
shortly after the deed transfer that she made a bad
decision and will no longer honor her paying all the
bills.
The attorney's stance
at this point is that she has a conflict of interest and
will offer no opinion. How about “them apples?” The 2/3
sister is saying that since she never signed the
agreement paying for everything, then there is no
agreement. In essence she says they have a partnership
and whatever he doesn't pay will be accumulated and when
the property is sold that amount will be deducted (she
says this is Texas Statute). Do you have any thoughts on
this situation? Do they have a partnership? He doesn't
get a K-1 return and the only thing he has deducted on
his tax return has been the property taxes he has been
paying.
Answer:
Ah, everything is relative. They are tenants in common,
however, not partners, and he, by accepting the deed,
has to bear his share of the expenses, or she can deduct
them out of his share of income on the property, from
whatever source.
Nonetheless, your
question evokes a hodge-podge of questions that require
a legal opinion. While we appreciate the intricacies of
your question, we do not provide legal opinions.
Granted, there is a fine line between offering answers
to questions regarding real estate and offering an
answer to a question (or series of questions) that
involve offering a legal opinion. We suggest that you
hire an attorney who has a successful track record in
providing opinions dealing with real estate law.
Question (TX):
My roommate and I signed a year lease a few months ago
and have since then had problems/major differences
living together. Both our names are on the lease and I
offered to leave if she could find someone to replace me
on the lease. If not I would like to get out of it all
together. We signed the Texas Assoc. of Realtors
Residential Lease. It seems vague on what penalties if
any we would incur. We paid $900 deposit so am I
entitled to get that back if the person replacing me
pays $450 to the landlord? The lease states that we
would owe 50% of one month’s rent so does that apply if
one of us stays on the lease? Or if both of us get off
then is that just a onetime fee? I know this is a lot of
questions but I appreciate your time and let me know if
you need further info.
Answer:
Section 28. Of your lease entitled “Early Termination”
provides the terms and conditions applicable to both of
the Tenants for an early termination, even if only one
of the two Tenants terminates early. You will need the
Landlord’s permission to effect an early termination, so
we recommend that you seek to locate a credit-worthy
replacement Tenant for your part of the lease, then get
him/her to complete an application so that the Landlord
can perform his/her due diligence. Be aware, however,
that unless the Landlord specifically agrees in writing,
the original Tenants will still be liable to complete
the financial obligations through the Term of the lease. |
