Question regard change of property deed
AndyS
A husband and wife presently hold their house ETUX in a community
property state.
They desire to have the deed changed to "joint tenancy with rights of
survivorship".
My understanding is that they can use their present warranty deed
as a form for
a new warranty deed, and
then list themselves both as grantors and as grantees, with the
grantees holding the
property as "joint tenants with right of survivorship". Then the new
deed would be
witnessed, notarized, and filed, and would be the new legal deed for
the property.
The purpose is to remove the house from the probatable estate on
the death of
one of the spouses.
Is this procedure correct ?
Thanks,
AndyS
Mike Jacobs
> Andy asks:
>
> A husband and wife presently hold their house ETUX in a community
> property state.
What does "ETUX" mean? Is that an acronym for a 4-word phrase, or is
it an abbreviation for the Latin term "et uxor," meaning, "and his
wife?" Doesn't the deed list BOTH of their actual names, not just
"Joe Smith et ux."? Therefore, isn't the "et ux." superfluous, unless
it is just a short form way of referring to "Joe Smith and Mary Smith,
as husband and wife"? And if this is a CP state, doesn't all
property which the law would deem held by the marital community belong
to the community, regardless of how it's titled on the Deed?
I don't have the answers, I just ask the questions, here.
> They desire to have the deed changed to "joint tenancy with rights of
> survivorship".
Since I don't know what you mean by "ETUX," I don't know if that's a
significant change, or _not_.
In MD (which is _not_ a CP state), married couples who hold their
property as "Tenants by the Entireties" (TBE is the usual acronym)
have all the characteristics of a Joint Tenancy with Right of
Survivorship (JTWROS) with the _additional_ benefit that the property
cannot be attached, while both spouses are alive, to satisfy the sole
debts of _one_ of the spouses - it can only be attached to satisfy a
_joint_ marital debt. So, it is advantageous for married couples to
hold their property as TBE, with no major disadvantages - title
_still_ goes directly to the surviving spouse, bypassing probate, when
the first of them dies. And, if the surviving spouse is _not_ the one
who owed the sole debt, the debt becomes uncollectible against that
asset, which is now held only in the survivor's (non-debtor's) name.
> My understanding is that they can use their present warranty deed
> as a form for
> a new warranty deed, and
> then list themselves both as grantors and as grantees, with the
> grantees holding the
> property as "joint tenants with right of survivorship". Then the new
> deed would be
> witnessed, notarized, and filed, and would be the new legal deed for
> the property.
Maybe. I don't know TX law (you _are_ in TX, right Andy?)
> The purpose is to remove the house from the probatable estate on
> the death of
> one of the spouses.
I have no idea whether this Rube Goldbergian process is even
_necessary_ to remove the house from the probatable estate of the
first spouse to die. In fact, they may _already_ have that effect,
depending on exactly how the present Deed is worded, and depending on
the effect of applicable TX law. If this TRULY MATTERS to this
couple, and is not just a hypo-for-discussion, they really ought to
CONSULT A LOCAL LAWYER instead of trying to do it by a completely do-
it-yourself approach. The legal answer is one which any competent
local real estate/estates & trusts/marital relations lawyer could
probably give them without even having to look it up, and said lawyer
could prep and file the necessary paperwork with a bare minimum of
actual legal time invested. Is it worth saving at most a couple
hundred bucks, for this couple to risk screwing it up and costing
their heirs perhaps hundreds of thousands of dollars in losses if they
do it WRONG?
> Is this procedure correct ?
This couple should ask their local lawyer if doing that would be
"correct" for them in terms of ACCOMPLISHING THEIR GOAL.
While the do-it-yourself couple may do it "correctly," much as the
Sorcerer's Apprentice knew how to "correctly" chant the spell that
made the broom come to life and sweep the house all by itself, they
may not know how to "turn it off," and then they may find out that the
result is MUCH DIFFERENT than what they intended.
Caveat emptor.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Stuart A. Bronstein
> A husband and wife presently hold their house ETUX in a
> community property state.
> They desire to have the deed changed to "joint tenancy with
> rights of survivorship".
>From an income tax standpoint that's not a smart idea.
> My understanding is that they can use their present warranty
> deed as a form for a new warranty deed, and then list themselves
> both as grantors and as grantees, with the grantees holding the
> property as "joint tenants with right of survivorship". Then
> the new deed would be witnessed, notarized, and filed, and would >
be the new legal deed for the property.
That's normally about how it works.
> The purpose is to remove the house from the probatable
> estate on the death of one of the spouses.
>
> Is this procedure correct ?
Probably. But using a trust would be much better, especially if
saving money is part of the reason for doing this.
nos...@isp.com
> A husband and wife presently hold their house ETUX
> in a community property state.
If (as others of your postings appeared to suggest) you refer to
property in Tex. acquired while they were married by a husband and
wife in Tex., see concluding question below.
>They desire to have the deed changed to "joint tenancy
> with rights of survivorship".
>
> My understanding is that they can use their present warranty
> deed as a form for a new warranty deed, . . .
. . . or to do what you ask about without a full warranty, e.g., even
by quitclaim deed, if they wish, . . .
> . . . and then list themselves both as grantors and as grantees,
> with the grantees holding the property as "joint tenants with\
> right of survivorship". Then the new deed would be witnessed,
> notarized, and filed, and would be the new legal deed for the
> property.
>
> Is this procedure correct ?
It is one way to achieve what you say below is the desired purpose,
but it arguably is not "correct" in the sense of probably least costly
and most efficient.
> The purpose is to remove the house from the probatable
> estate on the death of one of the spouses.
If so, then why don't they spouses simply agree in/by a mutually
signed (and, if they would feel better about this formality,
acknowledged-before-a-notary) writing to the effect that the community
property to which you refer shall become the property of the survivor
upon the death of the first of them to die and which contains the, if
you will, "magic words" needed to achieve this result,* as provided
for by Tex. Probate Code งง 451-454?
________________________________
* I.e., contains any of the phrases relating to the
property in question, "with "with right of survivorship"
or, "will become the property of the survivor" or,
"will vest in and belong to the surviving spouse" or
"shall pass to the surviving spouse"?
AndyS
> What does "ETUX" mean?
**** Since you are not familiar with the term, here is the legal
definition:
(et uhks) n. abbreviation for the Latin words et uxor meaning "and
wife." It is usually found in deeds, tax assessment rolls and other
documents in the form "John Alden et ux.," to show that the wife as
well as the husband own property. The connotation that somehow the
wife is merely an adjunct to her husband, as well as the modern
concepts of joint tenancy, tenancy in common, community property where
applicable and equal rights of the sexes have combined to make the
expression a chauvinistic anachronism
**** In a community property state, when one spouse dies , unless
there is
a will, one-half of the property belongs to the survivor and the other
half
belongs to the heirs of the deceased, such as children.
**** The purpose of the mentioned transfer is to allow the survivor to
have
a clear and insurable title to the property without having to go thru
probate.
A simple procedure such as this is equivalent to changing the oil in
one's own car ---- one can mess up, but only a small amount of
education
is necessary to do such a simple procedure.
*** Since you say you are unfamiliar with the term, as well as being
unfamiliar with "Texas" law, and the wording on Texas warranty deeds,
I am surprised that you wrote such a lengthy
answer. Thanks, just the same.
AndyS
AndyS
>
> > Is this procedure correct ?
>
> It is one way to achieve what you say below is the desired purpose,
> but it arguably is not "correct" in the sense of probably least costly
> and most efficient.
>
******* With a word processor, and the existing warranty deed, it
only
takes about fifteen minutes to type out a new warranty deed, and a
trip to the local bank to have it witnessed and notarized. Very
little
cost involved except maybe for the 10 or 15 dollars it will cost to
register it with the county clerk...... How much did you think it
would cost ?
> > The purpose is to remove the house from the probatable
> > estate on the death of one of the spouses.
>
> If so, then why don't they spouses simply agree in/by a mutually
> signed (and, if they would feel better about this formality,
> acknowledged-before-a-notary) writing to the effect that the community
> property to which you refer shall become the property of the survivor
> upon the death of the first of them to die and which contains the, if
> you will, "magic words" needed to achieve this result,* as provided
> for by Tex. Probate Code งง 451-454
**** A most excellent approach. That has been done in accordance
with that statute, but in order to avoid complication, it seemed a
good
idea to do it with the warranty deed on file with the county clerk
also.
I am not sure how the " conversion of community property to JTwROS" is
handled in the local court registry, and the extra effort for the
warranty
deed is small..... Thanks for your reply.
Andy
> ________________________________
>
> * I.e., contains any of the phrases relating to the
> property in question, "with "with right of survivorship"
> or, "will become the property of the survivor" or,
> "will vest in and belong to the surviving spouse" or
> "shall pass to the surviving spouse"?
***** No, the present warranty deed does not. The new warranty
deed wiill state that explicitly. That was the issue that I was
asking for opinion on. Thanks again.
Andy
Stuart A. Bronstein
> AndyS <andysha...@juno.com> wrote:
>>
>> A husband and wife presently hold their house ETUX in a
>> community property state.
>
> What does "ETUX" mean? Is that an acronym for a 4-word phrase,
> or is it an abbreviation for the Latin term "et uxor," meaning,
> "and his wife?" Doesn't the deed list BOTH of their actual
> names, not just "Joe Smith et ux."? Therefore, isn't the "et
> ux." superfluous, unless it is just a short form way of
> referring to "Joe Smith and Mary Smith, as husband and wife"?
> And if this is a CP state, doesn't all property which the law
> would deem held by the marital community belong to the
> community, regardless of how it's titled on the Deed?
I don't know about Andy's state, but in California to specify that
two people take title to property as "husband and wife" means title
is taken as community property. I suspect that's what it means.
Stuart A. Bronstein
> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
>> What does "ETUX" mean?
>
>
> **** Since you are not familiar with the term, here is the legal
> definition:
No, Mike is not unfamiliar with the term, and if you actually read
what he wrote he clearly demonstrated that.
What he meant was, first of all "etux" is not a word. It's written
"et ux," as two words.
Second, what does it mean in your context, and do you know what it
means? While the term was widely used years ago, its use has
diminished and is seldom used these days. If it is routinely used in
Texas deeds, I can understand that. But if so that would be peculiar
to Texas. California is also a community property state, and it is
not used here.
Stuart A. Bronstein
> **** A most excellent approach. That has been done in
> accordance with that statute, but in order to avoid
> complication, it seemed a good idea to do it with the warranty
> deed on file with the county clerk also.
> I am not sure how the " conversion of community property to
> JTwROS" is handled in the local court registry, and the extra
> effort for the warranty deed is small..... Thanks for your
> reply.
One other things I forgot to mention. Changing the title of property from
community property to joint tenancy can have a significant income tax effect if one
of the spouses dies. Under federal income tax law, the entire basis of property
changes to the value at the date of death of a spouse owning community property.
But for joint tenancy property only half gets the stepped up basis.
For example, a couple buys rental property for $100,000, and one spouse dies when
it is worth $200,000. The surviving spouse wants to sell and pocket the profit.
What's the taxable capital gain?
If it's community property, the basis goes up from $100,000 to $200,000, and the
surviving spouse pays no tax. If it's joint tenancy, the basis only goes up to
$150,000, so the surviving spouse has a taxable capital gain of $50,000.
Mike Jacobs
> On Nov 12, 12:14 pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > What does "ETUX" mean?
>
> **** Since you are not familiar with the term, here is the legal
> definition:
>
> (et uhks) n. abbreviation for the Latin words et uxor meaning "and
> wife."
That abbreviation ("et ux.," not ETUX") is exactly what I suggested,
in my previous post, I thought you meant to say. But it's not what
you WROTE. What you wrote was a single word run together, in ALL
CAPS, with no period at the end to indicate that the second word was
abbreviated. For all I knew, you _could_ have meant, "Electronic
TUXedo," or "ExtraTerrestrial Undersea eXploration." Which is why I
asked
<most of the rest of the definition you quoted, snipped - BTW, you
didn't give a SOURCE for your quote, bad form>
>the expression [is] a chauvinistic anachronism
Agreed. That ancient form is also not sufficient, in this day and
age, to specify a PARTICULAR wife, when a man may have many wives,
seriatim. Far better to title the deed, "Joe Smith and Mary Smith,
vir et uxor" rather than simply "Joe Smith et ux." Does the latter
refer to Mary, Joe's first wife, or to Sally, Joe's second wife, or to
Tiffany, his current trophy wife?
BTW, "vir et uxor" is the complete Latin phrase, "_man_ and wife" -
itself a sexist anachronism, since it implies that a "man" is fully
human in his own right, an independent being, not just a "husband" in
relation to his wife, while the "wife" is not anything legally but an
appendage to her "man."
> **** In a community property state, when one spouse dies , unless
> there is
> a will, one-half of the property belongs to the survivor and the other
> half
> belongs to the heirs of the deceased, such as children.
>
> **** The purpose of the mentioned transfer is to allow the survivor to
> have
> a clear and insurable title to the property without having to go thru
> probate.
If you knew all that already, why did you ask us _here_ if this was
the "right thing" to do? As I noted in my post, none of us can tell
you if it's the "right thing" for YOU, since it depends on exactly
what you want to accomplish (not stated in your original post), and on
the exact language of the _current_ deed (also not stated in your
original post)
> A simple procedure such as this is equivalent to changing the oil in
> one's own car ---- one can mess up, but only a small amount of
> education
> is necessary to do such a simple procedure.
I suppose it also takes "only a small amount of education" to remove
an appendix. Any butcher with a grade-school understanding of
intestinal anatomy and a sharp knife can do it. The trick is in doing
so without killing the patient or otherwise "messing up.".
Even the amateur oil changer, if he "messes up," can ruin an expensive
engine due to running it without sufficient oil, and/or can cause a
major wreck if his engine suddenly spills its oil on the highway due
to an improperly tightened drain plug; his potential consequences from
a screw-up are _not_ limited to just having a puddle of oil to clean
up on his garage floor. Your optimism in the face of risks you
barely comprehend is naive to say the least.
> *** Since you say you are unfamiliar with the term,
I didn't say that. And if you think so, you skimmed right over my
full explanation of the term "et ux." in my earlier post. What I was
unfamiliar with was what YOU meant by "ETUX" as you wrote it, without
punctuation or spacing.
> as well as being unfamiliar with "Texas" law,
That I freely admit. I wonder why you put "Texas" in quotes,
though. Perhaps because your original post didn't say in what state
the property at issue is located? I merely _assumed_ Texas (with a
question mark, if you go back and look) since I recognized you from
previous posts where you identified yourself as living in Texas.
> and the wording on Texas warranty deeds,
Which deed wording you in any event did not quote to us yet in this
thread, let alone in your original post I was replying to, so no one
could tell if the PARTICULAR deed at issue actually HAD all the
required "magic language" in it, to _be_ a "warranty deed."
> I am surprised that you wrote such a lengthy
> answer. Thanks, just the same.
You're welcome. Truly, I am not trying to berate your efforts at self-
help, but I urge you to seek legal counsel, since if the matter is as
simple as you say it is, it should take your lawyer almost no time at
all to do it right, but if you screw up, you could cloud the title to
the property and create great problems for the current and future
owners that would be astoundingly more expensive to fix. You pick -
pay a little bit now, or risk paying a lot more later. Also, if you
pay a lawyer a hundred bucks or so now to do this, and _he_ screws up,
then you can look to his MALPRACTICE INSURANCE as an additional source
to pay for the legal effort to make things right later, or to
compensate you (and any intended third party beneficiaries)
financially for the losses his mistake caused you, if correcting the
title to achieve the desired legal outcome is by then impossible.
Just sayin'
Or, do it yourself. And, take all the risks upon yourself. It's a
free country. Good luck,
Gordon Burditt
>
>**** Since you are not familiar with the term, here is the legal
>definition:
>
>(et uhks) n. abbreviation for the Latin words et uxor meaning "and
>wife." It is usually found in deeds, tax assessment rolls and other
>documents in the form "John Alden et ux.," to show that the wife as
>well as the husband own property. The connotation that somehow the
>wife is merely an adjunct to her husband, as well as the modern
>concepts of joint tenancy, tenancy in common, community property where
>applicable and equal rights of the sexes have combined to make the
>expression a chauvinistic anachronism
Isn't that just a disaster waiting to happen? Consider this scenario:
John Alden and his second wife Mary get married and buy a home
together, which is titled "John Alden et ux.". They live happily
until John gets hit by a bus ten years later and dies. John's
*first* wife Helen comes out of the woodwork claiming that he never
signed the divorce papers, therefore "et ux." refers to *Helen*,
and his second marriage never legally existed, so it can't refer
to Mary. Therefore, the house is hers, not Mary's.
Alternate ending: After John gets hit by a bus, it comes out that
the priest who married John and Mary was a fake, therefore John and
Mary were never legally married. Their state doesn't recognize
common-law marriage. In this ending, John did sign the divorce
papers from Helen well before buying the house. Who owns the half
of the house that wasn't John's?
AndyS
>
> Isn't that just a disaster waiting to happen? Consider this scenario:
> John Alden and his second wife Mary get married and buy a home
> together, which is titled "John Alden et ux.". They live happily
> until John gets hit by a bus ten years later and dies. John's
> *first* wife Helen comes out of the woodwork claiming that he never
> signed the divorce papers, therefore "et ux." refers to *Helen*,
> and his second marriage never legally existed, so it can't refer
> to Mary. Therefore, the house is hers, not Mary's.
>
Andy comments:
I love hypothetical constructs. Here's one you didn't mention.
John's first wife disappears and aliens land on his front lawn.
John falls in love with, and marries, and alien named "UX"....
who claims the deed is her name now, and wants to sell the
property....
Wow, consider the infinite possibilities !!!! :>)))))
It is wonderful to know people with vivid imaginations who can
find the time to dream up scenarios to show the original poster
just how little he knows. It's like a newscaster asking a politician
a simple "yes" or "no" question ------ who woulda thought so many
answers could be made from only 26 letters ....?????
Andy in Eureka, Texas
Don
> I suppose it also takes "only a small amount of education" to remove
> an appendix. Any butcher with a grade-school understanding of
> intestinal anatomy and a sharp knife can do it. The trick is in doing
> so without killing the patient or otherwise "messing up.".
>
> Even the amateur oil changer, if he "messes up," can ruin an expensive
> engine due to running it without sufficient oil, and/or can cause a
> major wreck if his engine suddenly spills its oil on the highway due
> to an improperly tightened drain plug; his potential consequences from
> a screw-up are _not_ limited to just having a puddle of oil to clean
> up on his garage floor. Your optimism in the face of risks you
> barely comprehend is naive to say the least.
That is a good point. The saying "Don't be penny wise and pound
foolish" comes to mind. One addition to that wisdom, however, may be
useful: It is important to have some idea of the size of the risk
entailed in a course of action in addition the the existence or non-
existence of the risk. For example, it does not make good sense to pay
a professional person a large amount of money to avoid losing a rather
small or moderate amount of money that has an extremely small
probability of happening.
I get lots of email messages wanting me to pay for computer programs
that offer security against various REAL BAD risks that could happen
to the computer. It is hard to tell which are legitimate and which are
not worth the money for the size of the risk involved. Certainy not
all of them are needed. I could have armor plate installed on my car
to avoid the risk of being hit by random bullets from people playing
with guns. I am not sure the expense would be justified.
The same caution needs to be exercised in consulting professional
people. There was a time when some doctors were known to recommend
surgical procedures that were not necessary in order to collect bit
fees. The same for dentists. Car repair mechanics are legendary. And
many people claim to be professional at doing this or that when in
reality they are no more than sales people Sometimes the risk of
getting snared by the wrong professional person is greater than the
risk against which one seeks protection.
Mike
> Agreed. That ancient form is also not sufficient, in this day and
> age, to specify a PARTICULAR wife, when a man may have many wives,
> seriatim. Far better to title the deed, "Joe Smith and Mary Smith,
> vir et uxor" rather than simply "Joe Smith et ux." Does the latter
> refer to Mary, Joe's first wife, or to Sally, Joe's second wife, or to
> Tiffany, his current trophy wife?
Mike, I agree the wording is vague, anachronistic and chauvinistic and
shouldn't be used. But if a document WAS worded as "Joe Smith et ux"
wouldn't/couldn't the law simply look at who was his wife at the time of
the making of the document (and, if there was none at that time, simply
ignore the "et ux." part?)
Mike Jacobs
On Nov 23, 12:50 pm, Mike <prabb...@shamrocksgf.com> wrote:
>if a document WAS worded as "Joe Smith et ux"
> wouldn't/couldn't the law simply look at who was his wife at the time of
> the making of the document (and, if there was none at that time, simply
> ignore the "et ux." part?)
I honestly don't know, Mike. I _said_ that, earlier in this thread
-- I don't know TX law, I'm just raising _questions_. If Andy thinks
he knows the answers, and wants to plunge right ahead without counsel,
that's his choice.
All I'm suggesting is that, if Andy has any doubt whatsoever - such
as, whatever unknown factor it was that made him come here to MLM for
"advice" instead of just knowledgeably doing what he was going to do -
then it MIGHT make sense for Andy to consult a TX professional
knowledgeable in this field, who could answer his questions and do the
deed lickety-split for not very much money, allowing Andy to sleep at
night without worrying whether he had totally screwed up the deed to
the ol' homestead so that his grandkids would one day be out on the
street looking for a new home instead of snug in _their_ beds. Just
sayin'
Mike Jacobs
On Nov 21, 4:58 pm, Don <dwz...@telus.net> wrote:
> useful: It is important to have some idea of the size of the risk
> entailed in a course of action in addition the the existence or non-
> existence of the risk. For example, it does not make good sense to pay
> a professional person a large amount of money to avoid losing a rather
> small or moderate amount of money that has an extremely small
> probability of happening.
Of course you're right. I agree completely.
Let's look at Andy's situation:
A. Size of risk: Hundreds of thousands of dollars (entire value of the
house or other property at issue, which may go to the wrong person or
otherwise have its title screwed up if he does this wrong)
B. Cost of avoiding risk by consulting professional: two hundred bucks
(or less, in a competitive market)
C. Probability of risk actually happening: unknown (Andy didn't tell
us enough details - but that, in itself, ought to be telling)
If (A) x (C) is greater than (B), it pays to do (B).
If (A) x (C) is less than (B), doing (B) may be a waste of money.
I'm not telling Andy what he should do. Just providing the
formula. _He_ can do the math, himself, and make his own decision,
based on what percentage number he decides to plug in for element (C)
of this formula.
> I get lots of email messages wanting me to pay for computer programs
> that offer security against various REAL BAD risks that could happen
> to the computer. It is hard to tell which are legitimate and which are
> not worth the money for the size of the risk involved.
I would say, in the case of SPAM messages, that the risk you are
getting HONEST information about a REAL threat to your computer is
infinitesimal. They are trying to SELL you a product using a time-
honored scam. Of course, you know that.
> Certainy not
> all of them are needed.
I'm sure that if you actually WANTED to shop for an anti-malware
product, you would go to TRUSTED SOURCES such as reviews from a
computer magazine you like, or a knowledgeable tech-geek friend,
instead of believing every spam message you receive. Did you fall
for the one that promised you an "omnipotent pork sword" too? Of
course not.
> I could have armor plate installed on my car
> to avoid the risk of being hit by random bullets from people playing
> with guns. I am not sure the expense would be justified.
Unless your last name was Gotti, maybe. Sometimes armor plate _is_
justified by the risk.
> The same caution needs to be exercised in consulting professional
> people. There was a time when some doctors were known to recommend
> surgical procedures that were not necessary in order to collect bit
> fees. The same for dentists. Car repair mechanics are legendary. And
> many people claim to be professional at doing this or that when in
> reality they are no more than sales people Sometimes the risk of
> getting snared by the wrong professional person is greater than the
> risk against which one seeks protection.
Sigh. That's why I always recommend that you seek a referral for
professional help first from SOMEBODY YOU TRUST, who has no personal
axe to grind (_the_friend_ won't make any money off whatever your
problem is, and is just trying to help) rather than just picking names
at random out of the phone book or that you saw on TV because you like
their flashy ad.
Mike
> MODERATOR - this is my THIRD ATTEMPT to post this:
>
> On Nov 23, 12:50 pm, Mike<prabb...@shamrocksgf.com> wrote:
>> if a document WAS worded as "Joe Smith et ux"
>> wouldn't/couldn't the law simply look at who was his wife at the time of
>> the making of the document (and, if there was none at that time, simply
>> ignore the "et ux." part?)
>
> I honestly don't know, Mike. I _said_ that, earlier in this thread
> -- I don't know TX law, I'm just raising _questions_. If Andy thinks
> he knows the answers, and wants to plunge right ahead without counsel,
> that's his choice.
Basically my question was more in the line of a generic/general question
and wasn't really aimed at Andy's specific case or at any specific state
laws (yes, I realize they DO vary) but more just a general "theory of
law" kinda thing. I didn't mean to try and put ya on the spot there, Mike :)
Keith Snyder
"Mike Jacobs" <mjaco...@gmail.com> wrote in message
news:36000a56-5b4c-4e03...@j32g2000prh.googlegroups.com...
> MODERATOR - this is my THIRD ATTEMPT to post this:
>
> On Nov 23, 12:50 pm, Mike <prabb...@shamrocksgf.com> wrote:
>>if a document WAS worded as "Joe Smith et ux"
>> wouldn't/couldn't the law simply look at who was his wife at the time of
>> the making of the document (and, if there was none at that time, simply
>> ignore the "et ux." part?)
>
> I honestly don't know, Mike. I _said_ that, earlier in this thread
> -- I don't know TX law, I'm just raising _questions_. If Andy thinks
> he knows the answers, and wants to plunge right ahead without counsel,
> that's his choice.
>
> All I'm suggesting is that, if Andy has any doubt whatsoever - such
> as, whatever unknown factor it was that made him come here to MLM for
> "advice" instead of just knowledgeably doing what he was going to do -
> then it MIGHT make sense for Andy to consult a TX professional
> knowledgeable in this field, who could answer his questions and do the
> deed lickety-split for not very much money, allowing Andy to sleep at
> night without worrying whether he had totally screwed up the deed to
> the ol' homestead so that his grandkids would one day be out on the
> street looking for a new home instead of snug in _their_ beds. Just
> sayin'
I'm no expert, but I'm going through TX probate right now, and via my own
lawyer can
point out some pitfalls.
Texas is a community property state, that is joint ownership. BUT without
right of survivor.
The deceased spouse's half of a house must be probated if you want to get
clear title to the house.
Also, the deceased spouse may have owned items personally, which are NOT
joint property. Inheritances
the deceased received as an individual are not joint. For example, his/her
inherited jewelry, antiques. These
should be declared with their present value and probated.
Probate is administered at the county court level. Some counties in Texas
have their own additional
requirements before a will is accepted for probate. For example, Denton
County requires contingent
heirs to receive copies of the will, usually by registered mail. Typically,
and just for example, the deceased
spouses will leaves everything to the surviving spouse, but to the children
in case the spouse too is
dead. The children are contingent heirs, and must be given copies of the
will, and documented that
they received it, usually signing for registered mail.
Mike Jacobs
On Dec 9, 2:01 pm, Mike <prabb...@shamrocksgf.com> wrote:
[How would courts construe a deed to "John Smith et ux." today?]
> Basically my question was more in the line of a generic/general question
> and wasn't really aimed at Andy's specific case or at any specific state
> laws (yes, I realize they DO vary) but more just a general "theory of
> law" kinda thing. I didn't mean to try and put ya on the spot there, Mike :)
Oaky doaky... in a general sense, the problem is still that the phrase
is ambiguous, referring to the wife only by her kinship title, not by
name - which has the potential to refer to more than one person,
unless a _specific_ person is called out by name. Sure, most of the
time the courts could figure out who was really meant, but sometimes,
they couldn't -- and the point of good draftsmanship of legal
documents is to minimize the potential ambiguities from which
confusion, and wrong results (from the drafter's point of view, that
is) could arise. Anytime there's even a POSSIBILITY that someone
could interpret the document you drafted to mean the opposite of what
you wanted it to mean, that is a sure sign it was poorly drafted.
An example I remember from law school had a testator who, on his
deathbed, wrote a handwritten Will that simply said, "I leave all to
Mother." Who did he mean? His own, elderly mother? Or his wife,
the mother of his many children, whom he affectionately called
"Mother" when he addressed her? IIRC the court in that case listened
to testimony about the decedent's use of that term of address for his
wife, and the need to care for his children, to interpret the Will to
leave all to the surviving spouse. However, it could have gone the
other way, and that is the point - avoid ambiguity, as much as you
can, in legal documents.