All posts by James London

What is not included in a seller’s disclosure in Texas?

Real Estate Transactions

A seller’s disclosure is simply a document that relates information about a property to potential buyers. This is done so that the buyer really knows what he or she is getting and so that there are no surprises. However, some things that you may think should be included are not actually required in Texas. It’s very important to know how this works.

For example, many buyers will want to know if someone died in the house. However, if that death was a suicide, an accident or just a death from natural causes, the seller is under no obligation to tell the buyer about it. However, if the accident only occurred because the property itself is unsafe in some fundamental way, a seller may have to disclose this so that the buyer knows what repairs and upgrades are needed.

Additionally, when an inspection is done and the home fails this inspection, making it so that a sale doesn’t take place, the seller is not obligated to give that inspection report to the next potential buyer. However, the seller does, as noted above, have to disclose defects and problems with the home that are already known. Therefore, if those things are in the report, it’s not a bad idea to give this inspection report to the next potential buyer, even though the law does not directly require such action.

Finally, if there is a sex offender living near the home, the seller does not have to lawfully disclose this fact to potentially buyers. It is up to those buyers to do their own research on the sex offenders registry and to learn about the offender on their own.

Source: Texas Association of Realtors, “12 things you should know about seller’s disclosure” accessed Feb. 20, 2015

Battle rages over Robin Williams’ estate

Estate Administration

After the passing of Robin Williams, it seemed that the man’s wife and his children — who come from previous marriages — would not have to fight in court over his estate since he had done such a good job planning out what was to be done with his possessions. He and his wife had a prenuptial agreement, and his estate plan is in line with that agreement.

Basically, it gives his wife the home that they had in Tiburon, and it even says that a trust must be made so that the expenses of the home are financially covered. Other properties in Napa Valley are then given to the children, along with a lot of Williams’ personal memorabilia and effects.

However, for some reason, his widow has decided to start a court case. She wants to keep all of the things in the house, despite the estate plan saying that some of it goes to the children. She also wants the court to decide how large her trust should be.

What is curious about this development is that it has happened at all. Some of the things that she is asking for are already supposed to be done; for example, a legal team is already supposed to determine what the trust has to cover and then they will set it up to pay for the house. By making it into a court case, Williams’ widow may get the same end result, but everything will be more public.

To avoid things like this in Texas, it is very important to create an estate plan and to be very specific so that there is no room for debate.

Source: Forbes, “Robin Williams’ Widow Starts A Court Battle — But Why?” Danielle and Andy Mayoras, Feb. 03, 2015

Estate planning: Take care when naming beneficiaries on accounts

Heirs & Beneficiaries

Any Texas resident may be able to benefit from strong estate planning — you don’t have to be rich to want to protect your heirs. In fact, you might be taking estate planning measures without even realizing it when you set up certain accounts or policies, such as savings bonds or life insurance. Keeping your overall estate planning goal in mind when selecting beneficiaries for such accounts can save future trouble and help protect your heirs.

Some mistakes people often make in completing beneficiary forms include naming a single minor or disabled person as the beneficiary. Sure, you want the assets to pass to your children, but if they are minors or are not capable of handling the assets for other reasons, you should make provisions on beneficiary forms and in estate plans. Name someone you trust to handle the money on behalf of the minor, or the court may do it for you.

Naming your estate as a beneficiary is a tactic that can help save on taxes and protect your assets, but it doesn’t work for every type of account. In some cases, the payout and tax structures related to an individual beneficiary are more flexible than those related to an estate.

In addition to choosing the right beneficiary when completing forms, it’s also a good idea to review beneficiary forms from time to time as estate needs change. If there is any reason to change your will, for example, you should probably review beneficiary designations to ensure they are in line with your new wishes.

Estate planning can get complicated, especially if you have multiple accounts and policies with different beneficiary forms. Third-party assistance can help you combine all the parts of your estate in a cohesive plan that protects your wishes and your heirs.

Source: The Wall Street Journal, “Beware the Beneficiary Form” Carolyn T. Geer, accessed Feb. 10, 2015

Is that fence on your El Paso property or your neighbor’s?

Real Estate Disputes

Texas landowners take a lot of pride in their land, and boundaries are important. What happens when you find out that the neighbor has been using a piece of your land?

Well, in some cases, if they are good neighbors, when confronted, they will relinquish their use of your land, offer to buy it off of you or maybe offer to pay for their use of it. In the other percentage of cases, they may claim the land is theirs. Are they right? If a survey of the properties has not been done in a long while, it may be time to do one.

This is often where disputes over residential property take place. Those disputes can quickly escalate into full-fledged feuds if not handled properly. Seeking the advice of an attorney should be your first step.

While a survey should have been done when the property was purchased, if the property has been owned for a long time or in the family for a long time, aged deeds may not have defined the boundaries in clear terms. For instance, they may reflect the boundary as being so many feet away from a riverbed that is now nonexistent or has changed over the years. If a fence line once defined the property boundaries, the fence may have been moved.

Another argument that often comes up is to who owns the fence on the property line — who is responsible for maintaining the fence or tree that resides on the property line.

There are many ways to resolve land and property disputes. An attorney can provide advice and different options that are available. In the event that property owners cannot resolve the land dispute in any other way, there is such a thing as a “quiet title lawsuit” that can be filed requesting a court to determine the property boundaries.

How fast can foreclosures happen in Texas?

Foreclosure

The time between an original late mortgage payment and a foreclosure varies greatly and can depend on a variety of factors, including the particular lender that owns the mortgage. According to the Texas Department of Housing and Community Affairs, however, foreclosure processes can begin in as little as 90 days.

According to the TDHCA, a mortgage payment is considered delinquent if it is not paid by the agreed upon payment date each month. Many times, the payment date is the first of the month. Most mortgage providers do offer a grace period, which means late fees are not assessed until payments are delayed 15 days past the original due date.

Mortgage providers mail a late notice after the 15th day and may also begin making phone calls regarding the late payment. If payment is not made by the 30th day after payment was originally due, the homeowner is considered in default.

At the time default occurs, most lenders mail out another notice and many report the issue to credit bureaus. After 60 days from the original date the payment was due, if no payment has been made, the lender may begin the foreclosure process.

At this time, actions can differ greatly according to homeowner situations and individual lender. There are things that can be done to stop a foreclosure at this point, but lenders may stop accepting partial payments or might even demand that homeowners pay the full portion that is past due. The TDHCA points out that lenders don’t actually want to own your home, and it benefits them to work with you to create a situation where you can make the payments. At the same time, if you take no action, your lender will continue with the foreclosure.

Source: Texas Department of Housing and Community Affairs, “How Does Foreclosure Work?” accessed Jan. 27, 2015

Why you don’t want to pass away without a will in Texas

Estate Planning

If you pass away in Texas and you do not have a will, it is known as “dying intestate”. While this sometimes happens, especially when a death is unexpected, it is something you absolutely want to avoid if you can. This is why it is good to craft a will at any time, no matter your age or the likelihood of your passing.

For one thing, you will not have any say in how the wealth is distributed. The state has a set system that will be applied to any money and other property that you left behind. This system is designed to split everything up, but there is no promise that it will be done how you want it to be done.

For example, if you were married and you had two children, you may want to leave all of the money to your spouse, knowing that your children have their own income streams. If the children were from that spouse, this is what happens. However, if one of them was from another spouse, then the two children split half of the money, and the spouse gets the other half.

Additionally, there could be extra costs for your heirs if you do not have a will, and the whole process could be delayed. Since the legal system then has to handle the distribution, it can take some time to do even simple things like officially labeling people as heirs and legally determining what assets they will get.

To save your family this hassle and to make sure that your desires are met, you need to have a will in place.

Source: Texas Young Lawyers Association, “Texas Probate Passport: A guide to probate and estate planning in Texas” accessed Jan. 27, 2015

Why does your real estate transaction need a home inspection?

Real Estate Transactions

When you are purchasing a home in El Paso, Texas, is it really necessary to have a home inspection?

Yes, it is. A home is an important purchase. You need to know of any potential problems that could cost you a lot of money down the road. A home inspection is transparency when buying a home. If the roof leaks or the house has termites, you need to know. The home inspection will also tell you many things about the house, such as how old the roof is and when it will need replaced. It will tell you how old the central heating and air conditioning system is and many other important factors.

What if the house fails the inspection? A house never really “fails” the inspection because it is meant as an examination to tell you what condition the house is in. There are no regulations that it has to pass and the house will not be appraised by the home inspector. The reason for the inspection is to not only let you know the problems, but it can also be a source of negotiation if you still plan to buy the home. You might be able to request that the current owner take care of any major problems or at least deduct them from the cost of the house.

Do I need to call a home inspector when purchasing a home? If you have a real estate attorney who is assisting you with your purchase, he or she will probably handle this for you. A real estate attorney can actually handle every aspect of purchasing your home from start to finish. They can check any zoning laws, do title searches, review any contracts for loopholes that could leave you vulnerable and even draft agreements and contracts for you.

Source: American Society of Home Inspectors, “Frequently Asked Questions on Home Inspections” accessed Jan. 21, 2015

Texas guardianship application process

Guardianships

When a loved one becomes incapacitated for any reason, the option to file for guardianship exists for many family members and even some friends. A guardianship lets you step in to manage important decisions or even acts of daily life when someone is not able to do so for him- or herself.

According to the Texas Guardianship Association, individuals seeking guardianship over another must file an application. The application is submitted in the county where the potential ward lives, which is not necessarily the same county where the proposed guardian lives. Applications must also come with an examination by a physician or psychologist, depending on the nature of the incapacity.

Though applications differ across the state, most require similar information. Applicants will have to provide demographics about themselves and the potential ward and whether guardianship is being sought over the estate, the individual person or both. The potential guardian will also need to detail the reason guardianship is necessary and why the applicant is the right person for the duty.

Unique information may be required in cases involving minors, the elderly or the mentally handicapped. Once the application is filed, a citation is served on the potential ward, and a court investigation may occur. Court investigators will review the application and associated documents, and may also interview family members, the potential ward and guardian, and any professional care providers such as social workers, therapists and physicians.

Others may contest a guardianship application and make a case before the court. The court must find that the potential ward is incapacitated, requires a guardian and the guardian will protect the ward’s rights and property before granting guardianship. In some cases, legal assistance may help to increase the chances of a desired outcome.

Source: Texas Guardianship Association, “Guardianship Process” accessed Jan. 16, 2015

A condo association may be able to foreclose in Texas

Foreclosure

Generally speaking, people think of foreclosures as events that start with a bank; if you miss your mortgage payments for too long, the bank takes your home back to get the value of the property. However, did you know that a condo association or a homeowners association may also be able to start the foreclosure process?

Sometimes, this does not even happen because you are not making your mortgage payments, but because you are not paying the fees that go with living there. Many times, there may be HOA fees for things like maintenance or public spaces — like a pool — that all people in the association are able to use. These fees go on top of your mortgage payments for the property itself.

This is something that all homeowners need to be aware of, but especially those who are buying new homes. Some estimates suggest that a huge percentage — as high as 80 percent — of the new builds in the United States are set up under home owners associations or condo associations.

On the whole, around 65 million people in the U.S. are part of these associations.

Of course, the HOA fees differ from one association to the next, but typical estimates put them in the range of $300 a month to $400 per month. You can see how this may be tough to pay if finances are tight.

You do not want to lose your home in Texas, so make sure that you know exactly what may put it in jeopardy. You also need to know what legal options and rights you have if you find that a foreclosure may be coming.

Source: MarketWatch, “Condo-fee foreclosures become headache for homeowners” Daniel Goldstein, Jan. 09, 2015

Why do I need to have a will prepared?

Will Execution

Most Texas residents are aware that they should have a will drawn up to protect their family and their assets after they are gone. However, it is surprising how many people do not heed this advice. Most people think that it is no big deal because their assets will just go to their spouse or children if something happens to them.

However, that is an uncertainty. This is exactly why a will is important. It can remove the uncertainty. Without a will, a probate court — which you can liken to a stranger — gets to decide who gets your property and assets. They could end up in the hands of your spouse and children just the way you would want them to, but you don’t know that for sure.

You may be thinking that you don’t have a lot in the way of assets, so why bother? There are many more good reasons for having a will drawn up even if you don’t have a lot. For instance, there may be personal items that mean a lot to certain family members, and may just be thrown away by others. If you have multiple children, do you want to take the chance of your children getting into a feud over your belongings?

If you have had more than one marriage, and have children from a previous marriage, you may need a will to make sure that those children get a portion of your assets. Even if the family appears to all get along well, it is surprising to know how many family relationships where more than one marriage is involved crumble when the patriarch or matriarch passes away.

By having a will drawn up and specifying who gets what, you have narrowed the chance of your property or assets being held up by probate court, which can go on for months sometimes. If the validity of a will is contested by one of your heirs, it is possible that it could still go into probate, but the likelihood is much slimmer than with no will at all.

Not only are you protecting the ones you love with a will. You will get peace of mind in this area of your life.