I’m completely new to this and helping my elderly mother. My father owned mineral rights in west Texas and passed away 8 years ago. He had a will that did not specifically mention the rights but had some “catch all” clauses passing any type of property to my mother. I believe there were different types of rights including a Warranty Deed and Mineral and Royalty Conveyance. My mom has unfortunately let it sit and now wants to transfer to her name and ultimately pass it on to us children. She has tried contacting the courthouse and some officials in the county where the rights are located and was either blown off or ignored. What is the proper way to move this forward? Do we need an attorney? Thanks!
County officials are not allowed to provide legal advice regarding requirements to transfer to real property. You should go over all the records with your mother. Was probate filed for the estate? If so, were probate documents filed in the counties where minerals are located? If will was not probated, it may be too late to do so now depending on state law where he resided. Then title to Texas minerals will pass to heirs per Texas intestate law and there are differences depending in if it was separate or joint property. You may need to consult a Texas estate lawyer as to all the steps to get title cleared.
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Thanks for the help. Probate was not filed. My father resided in AZ and it looks like the statue of limitations for filing probate in AZ is 2 years so we are much passed that.
This is a discussion as to balancing value and practicality. If the properties are not currently producing you may want to consider filing a certified copy of the will in the county. If you do not have a certified copy, then you can attach a copy of the will to an Affidavit and file that of record in the county. This will not serve to transfer the title, but it will place companies on notice that you father has died and there was a will. The companies can decide on how they want to proceed with any title curative work. Ultimately, a Determination of Heirship proceeding will have to be conducted. This title requirement may be waived depending on the value of the interest.
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For Texas minerals, you do not need any legal proceeding as the minerals will pass under intestacy statute, with exact heirs depending on whether this was jointly owned or your father’s separate property and number of children. A Texas estate attorney can help you determine legal heirs and help with correct documentation. It may be possible for your mother to disclaim her interest in father’s minerals in favor of all the children, or vice versa, within the document as along as all the heirs agree and sign.
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The properties are not producing, however we did have a party interested in purchasing the rights a decade ago and they now have inquired again about pursuing a “deal”. I told my mother not to contact them until we understood more but at this point it seems like maybe it would not hurt anything to see what their offer entails and if working through the heirship with them could be arranged. Thanks.
Usually you are contacted when the area is active and drilling is planned. Be sure that you have a legal description and understand exactly what you are selling and its value. You do not want to leave money on the table.
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I just replied to you but for some reason the post was held back for approval. Anyway, I appreciate your help and I share the same concern. Is there an easy way to ball park activity in an area (Culberson county in this case)?
I have to disagree with you on some title issues. While intestate statutes do apply to all real property, there will ultimately need to be a Determination of Heirship dependent on the value involved and any title requirements. You can of course disclaim an interest, but prior to a Determination there is no effect. Obviously many will file an Affidavit of Heirship which may be sufficient for an OGL, but not for merchantable title transfer or production value of any significance.
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Phil, I always encourage people to explore offers; otherwise, how can you determine the current market? Communication almost always increases an offer that provides you with hold or sell information. You may even gain some title information from the conversation. I would advise caution prior to accepting any offer unless you fully explore all of your options.
That’s very helpful. I need to research the intestacy laws further and figure out if the rights were jointly owned or separate property as you say. To further complicate it my father had other children from a first marriage that we don’t have much contact with and it appears the intestacy law may require equal distribution to them as well. At this point I think we will pursue two actions:
- Search for a TX estate attorney and at least get an understanding if the cost is worth pursuing.
- Contact an individual from a company that previously tried to purchase the rights. I was hesitant to do this until the ownership was straightened out but it appears there is probably no harm and possibly they would offer to work through this.
Thanks!
I have used Rick Strange in Midland to help me with title issues in the past.
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James, thanks for the help. In my limited understanding I was at first hesitant to discuss the offer with the title in limbo as I wasn’t sure if that potentially could open the door for some kind of rogue aquisition but it seems that is not the case. We will likely start the discussion with the interested party for the sake of discovery but definitely not accept an offer without a lot of homework.
You might want to try looking up your dad’s name on www.texasfile.com. Free to fairly inexpensive to look. You can get a list of his properties (if the deeds were properly filed) and then you can go onto the Texas Railroad Commission site to see what type of activity is on or around them.
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What do you mean by a Determination of Heirship? Texas law provides that real property automatically vests under intestacy statute. There is not a need for a court hearing and ruling. However, the heirs must file documentation in the deed records where the minerals are located, such as an Affidavit of Heirship. These are often used when there is no probate or will, including for houses, to clear title. For an affidavit of heirship, there need to be two disinterested affiants who know the family structure and history so that they avoid making false claims, such as that there were no other children or that a living spouse was dead.
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Thank you! I will try texasfile and the Railroad Commission site.
Maybe a longshot but figure I’d ask at this point. Does anyone have recommendations of a Texas estate attorney that also is knowledgeable in mineral rights or vice versa? Thanks.
You can observe qualified professionals (often with localized expertise) who provide services to mineral owners right here on The Mineral Rights Forum. You will notice them in 3 different places on the site:
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in display image ads and text links on site
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in our Mineral Service Provider Directory in the main navigation bar above. These are arranged by professional discipline.
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as a Business Member within many conversations throughout the site Look for the blue colored “B” on their picture and blue colored text).
These practitioners are often able to provide specific (and often localized) services that meet your needs.
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You can of course use an Affidavit of Heirship, but that will not create merchantable title (clear title) and will be subject to challenge. You can file many documents and affidavits of record to bolster a claim, but in the cases of an intestate death a Determination of Heirship proceeding is required to be able to deliver merchantable title. This link to discusses the process and statutory requirements. https://www.aldrichfirm.com/probate/judicial-determinations-of-heirship/#:~:text=The%20heirship%20hearing.&text=Witnesses%2C%20including%20the%20applicant%20and,determination%20of%20the%20rightful%20heirs. Many people will proceed to purchase properties after an AoH has been filed. In so doing, they accept the risk of having to defend the title at a later date. One form of defense is a Division Order title requirement. With that said, I have purchased many properties over the years where I was able to have DO requirements waived by bolstering, but I have also have been required to conduct a Determination of Heirship for "On Pay purposes. This is why I tell people to assess the title risk and economic value before determining title curative methods.