Sign New Mexico Affidavit of Title Now

Document type sign affidavit of title new mexico now

okay good afternoon everyone welcome to today's dallas volunteer attorney program small state affidavit cle my name is catherine saldana i'm a mentor attorney with the dallas volunteer attorney program our program is a joint effort with the legal aid of northwest texas and the dallas bar association we serve those who live in poverty in dallas county and we partner flavono attorneys with our indigent clients needing legal assistance the texas small state affidavit is a useful tool to settle the states in texas however its use is often misunderstood and the affidavits are frequently rejected by the courts because they fail to comply with the statutory requirements of the code we are truly fortunate to have the honorable lincoln j monroe associate judge of probate court number two of dallas county speak to us today about how to submit a small state affidavit correctly and when it's appropriate he is both a certified public accountant and an attorney uh please join me in welcoming judge monroe thank you good afternoon i hope everybody is uh enjoying this very hot texas weather i'm going to start off with talking about chapter 205 the smallest chapter in the texas estates code but it is an extremely broad-based chapter and i want to talk a little bit about probate as a general concept whenever your best friend calls you up in the middle of the night and says my mom just died and i have her will and she names me as the executor can you help me out well most people say yes and that type of a probate is fairly simple you file an application you file the the original will and if it's a self-proved will you have an executor and the executor you have a hearing you have to ask about eight or nine questions and the person gets named as the independent executor and you have to file an inventory and you have to give notice to creditors and you have to give notice to the districts of the will it's fairly straightforward well 205 is a way when there is no will and first and foremost if there is a will 205 bars bringing that bringing a small state affidavit to clear an estate even if the family all agree they don't want the will probated 205 bars uh 205 encompasses such a broad range of all the other sections that you have to look at chapter 201 because the small state affidavit has to indicate who all of the heirs are and 201 has got several sub several sections to identify the heirs who are entitled to receive separate property theirs who are entitled to receive community property and what their shares are and on our small state recommended form we have a section on that so that you can go to 201 list out all of the errors 205 has all of your jurisdictional and venue items that are part of a normal application for probate where did the person die when did they die uh the four-year bar that's part of uh chapter 301 is not is not present on a small state affidavit so we get small state affidavits frequently that are uh persons died 10 years ago 20 years ago i've seen one where the person died 30 years ago and they just found out they had property at the state of texas as we're going down with the form in maricela if you could put that form on the page if you can put that page up up the small state affidavit yes one moment okay this the form that uh miss martin is going to show you on your screen is a form that's recommended by the probate court of dallas county you should be able to see this form now i see an accreditation notice oh i'm so sorry about that one here it is okay here you go sir all right should be the form now let me know if you can see it okay i'm still not seeing anything except for the accreditation notice and while uh miss martin is bringing that form up uh the form is a recommended form it's not required it's not statutorily required but it is a form that dallas county has on its website a pdf of the form and if you need a word version of the form uh if you'll send an email to the staff attorney for probate court ii charlottekey and her email address is charlotte c-h-a-r-l-o-t-t-e dot key k-e-y at dallascounty.org she will uh email you or reply back with the a word version of this form and as you look down the form excuse me it's going to require the decedent's name the day that they died and the year now the form says dallas county the person may not have died in dallas county and you would edit that out and put in the the county that they died in uh is followed by a in bold uh letter b a copy of the death certificate we have to have a copy of the death certificate before we will um okay i'll repeat that the email address charlotte c-h-a-r-l-o-t-t-e dot key k-e-y at dallas county dot o r g she is the staff attorney for probate court two you have to include a death certificate and i'm going to suggest that whenever you file the death certificate that the social security card number is uh edited out or blanked out and what we look at on the death certificate first off is this is this the right person and secondly uh who is filing that death certificate sometimes that's also on error the next line the more than 30 days have elapsed that's a requirement under chapter 205. the next is a jurisdictional venue line the decedent was a resident of and domiciled in uh whatever county their domiciled in the state of texas i'm going to point out to you that if the person died in waco and they lived in waco you're going to have a hard time getting the court to uh to approve the small state affidavit because we really don't have jurisdiction or venue the one exception is next to ken nearest ken under chapter 33 of the texas estates code but we really don't like doing that that that's an item that should be filed in the county or where the person died or in the county where they resided uh letter e is critical indeed and died without a will in test state if there is a will 205 bars presentation of a small state affidavit to collect the estate even if there's a family settlement agreement reptil has mentioned a couple of times that they may be trying to have that section amended to allow a small state affidavit if there's a family settlement agreement but as of yet no it's also required that no administration be pending frequently an attorney will file for a determination of airship and then when looking at the assets figure out that they really don't need to do a determination of airship but if it's pending we cannot grant the small state affidavit we cannot approve it so you'll have to dismiss those pleadings the next part letter g if you could scroll just a little bit this is a real critical line and people don't understand how critical it is the value of the estate assets on the date of the affidavit date of the affidavit not the date of death somebody died 20 years ago whatever they had on the day they died that value is not relevant it's the date of the affidavit excluding this is critical excluding homestead and exempt property i'm going to talk about homestead and exempt property in a couple of minutes the value does not exceed 75 dollars and then letter h which is a companion to letter g the value on the date of the ass of the f of the affidavit of the estate assets excluding homestead and exempt property exceeds the known liabilities i have had small state affidavits filed by attorneys where the uh value of the assets were 50 000 and the value of the debts were 150. sorry can't do it you you that the assets have to exceed liabilities one of the things that's required that we many people will put that there is no uh application or receipt of medicaid on or after march 1st 2005 that is from the texas human resources code chapter 32 and we have three blocks for you one decedent never applied two decedent did apply and mark is making the medicaid estate recovery program is listed as a liability i have seen a small state affidavit filed where box two is checked but they kind of forget to to put the the merp claim on it that doesn't work and then number three uh the third one is they did apply for it but there is no medicaid claim and that's very common if the the applicant who's going to be following this contacts the medicaid estate recovery program and receives a certification that the state is not going to go after the assets very common but if you've hit that box that third box you have to have the merp letter as an attachment if you can scroll down to the next page now this page here is very critical it's it's all of the assets you have to give enough of a description so that the asset can be identified and we request that you give x's and then the last four digits of the bank account number and the bank's name or some identifying information on a life insurance policy for example if you're trying to transfer a car we need the vin number and critically the address and legal description of real property if you're trying to pass title to the to the homestead and then you have the value of the assets as of the date of the affidavit i have seen attorneys file these and they'll put unknown or a question mark for the value on a bank account because the bank won't give them information if the bank won't give you the information as to how much is in the account you can file under chapter 153 an application for access to financial information and the court and you can file that under a small state affidavit number and the court will issue a court order ordering the bank to disclose the information and then on the third column very critical was each was the asset community property was a separate property and you have to give facts and explain why it's community or separate and then very critical under uh the insurance code and the texas property code is the asset exempt or not now 205 requires that all assets of the estate be listed and that means if you've got a lake lot out in bottom you got to list the lake light lake lot well if the lake lot is not the homestead can't use the small state affidavit it's one of the reasons why uh the 205 requires all assets to be listed because you want the entire estate and what's what what you're trying to collect and under 205.008 the only uh real estate that you can transfer title to is the homestead cannot transfer a title to any other real property if you can scroll down please at the very bottom underneath this box there's a little note a small state affidavit can only be used to transfer title to homestead property it to a spouse or to minor children 205.006 says that you can transfer title of a homestead under this affidavit but it's limited in under 205.008 it directs you to look at texas and state's code section 353.051 and under o51 the number one it indicates that you can transfer title of a homestead property to a spouse or a minor child and it's further uh it comports with the texas constitution article 16 section 52. if you if you need a if you have too many assets you can add another page now the largest estate that i have seen past [Music] i'll answer that in just a second the largest state i have seen past with a small state affidavit was 1.2 million you had a residence that was valued at 600 000 you had a retirement account which is exempt that was valued at 550 000 and you had 50 000 in a check account there was no will and uh they were trying to clear the checking account so if you look properly when there is no will you can get some large estates passed if the property falls within the constraints of chapter 205 and then i was asked if there was an adult child many many years ago an adult child living in the residence theoretically unmarried could get titled to the house but that was changed and now article 16 section 52 of the texas constitution limits the passing of a homestead to a surviving spouse or to a minor child and of the 3 000 small state affidavits that i have seen over the past five years twice we've had a transfer of a house to a minor child it's very very rare if you could scroll to the next section please okay liabilities there are two types of liabilities there's a liabilities that are that the lead that are for a mortgage for example uh a secured liability has to be listed but it's not counted against the uh against the assets what you're looking for what what the estate is uh is presenting here are credit card debts medical debts uh any debts that are generally considered unsecured and theoretically uh those debts would be paid by the bank if you're collecting a checking account before the the rest of the money is given to the uh is given to the applicant you need to give the uh detail on the on the liabilities and how much now it's it's courtesy to give a total of the of the assets and it's courtesy to give a total of the liabilities i'm a cpa i can do math we check we have no choice but to check if you could scroll down please now this next section uh underneath the liabilities we as judges get very upset if we see a small state affidavit used to collect a bank account that has let's say for example 4 500 in it and the attorney fees are 2 500. it's a little bit outrageous um we we want to know how much were paid in and who paid those fees and essentially who they're paid to um we're trying to help the people out you're not trying to [Music] make it economically unfeasible to do these now the next section here we get into a massive question can title to homestead be transferred to a surviving spouse if there are adult children and yes that happens very frequently mom and dad have three children adult son is still living at the house dad dies uh in the house's community property the title transfers to mom if the if the house is property community property and we do have an interesting situation that is allowed um if the house was dad's separate property he inherited from his mother his wife was living with him and he uh and he had three children and one of the sons is living there and we know under the texas state's code that mom's going to get a life estate even if it's dad's separate property you can still use the small state affidavit because as we get down to the right to receive section of the small state affidavit we're going to list out all classes of property and who is entitled to what's shared but the first thing we want to find out is on the date of the death was the decedent married or was he or was the decedent uh single and if they were married uh the court's requesting the date they were married and that's going to become important in a couple of minutes if you'll scroll to the next section please now this section right here is a very large section it's under section 201 chapter 201 and under 201.052 if the decedent is a male well we have to plead uh the presumptions of paternity and they're listed here and as you'll scroll down a little bit to see the bottom part of this page you're going to list the child's name the date of birth name of the child's other parent and then beneath this there are a few lines that are there that allow you to explain if you have three children for example first child second child third child their dates of birth the name of the other parent of all three of them are born during the marriage you would indicate all three children were born during the marriage and our children of the marriage you're explaining the presumptions of paternity and how they are met that's what the section here is for it also comes into play when there is separate property and community property if the children are not the children of the marriage if they are children from a prior marriage well then they're going to receive the decedent's share of of the decedent's community property if you'll scroll down to the next section here's where we start running into problems if he if you have pre-deceased children for example uh uh decedent is married had three children but one of them uh died as a teenager where you're going to list the name of the deceased child and the date the child died and did the child have any children um we get into a situation where you have uh grandchildren but their parents have died but their grandparent is the one who's uh who has now died and it you start running into problems on these as to who can who can sign and when when the person died these can get fairly complex scroll down to the next section we're going to list the parents because if the decedent had no children was he survived by his mother and his father um maybe if he's only survived by one parent the other parent is going to get half but if both of the parents deceased before the decedent did and he had no children was not married then you're gonna go to the next section and start listing um if you could scroll down please brothers and sisters this happens frequently we have a decedent who was not married had no children uh died at the age of 75 both parents pre-deceased but he's got a brother and a couple of sisters we're going to state who they are and whether they are full or half siblings that's because a full sibling will receive twice the share of the estate that a half sibling will and we need we want to know their birth dates and then beneath that if any of the brothers or sisters if at that time if that's the situation that we're dealing with were any did any of them pre-deceased the decedent and did they have children and if they were a pre-deceased brother or sister whether they were a full or half sibling because that's going to determine uh fractionally what the share of the interest is if you'll scroll to the next section now you're going to fill out a separate page if this is if the decedent was survived by none of the following if he did not have a spouse did not have a child did not have a grandchild didn't have a parent or a brother or sister or a half brother or a half sister or a niece or a nephew you're going to get into what a very detailed description for a determination of airship essentially and that's what the small state affidavit does if you'll remember under chapter 202 under determination of airship you list all of the relatives all of the people who would take in the estate and you have two disinterested witnesses that's why you have two decent witnesses signing on this affidavit form if you'll scroll to the next section please i've got a question that says okay did am i still i don't know if if i'm still being hurt uh if i'm still on or not you're still on judge okay i've got something else on my screen but that's okay i was asked do attorneys write in or fill in these blanks one of the reasons why i asked um why i've pointed out that you can get this form in a word version if you get it in word version you can go in and edit and type everything in that you need to you can take sections out that are that are not applicable um and the uh the to to get the form on an emailed version if you have adobe pro you can pull the form off of the dallas county probate court's website the form is there in pdf and adobe pro will allow you to go in and fill in the blanks although i have had an attorney print the form off and hand write it in so yes that is possible but here you're going to list for each of the distributes all of the heirs you're going to list their name address their telephone number their email address and there are three columns their separate their their interest in separate uh personal property their interests and separate real property and their interest in any community property of the decedent and even if you have a situation i have uh i've seen small state affidavits where you have a spouse married for 60 years you have three children all the property is listed as community property and i've had attorneys try to send us in with just the spouse uh indicated all the property's community property and that she's the only one who's gonna get all of it and it's rejected it's rejected because you have to list all of the children and you have to list their interest in any separate uh personal property and any separate real property wife would receive a life estate and the children would get their fractional interest in the separate real property subject to the surviving spouse's life of state and then in this the situation i was just describing to you the community property the children if they were all children of the marriage they would receive none and we require this for a couple of reasons number one it's a notice issue to all of the children and two we have been informed that there are some constitutional county courts in other parts of the state that are using small state affidavits as a de facto determination of airship and so for those two reasons we require all of the children even though they may not be getting any of the property and we require all the children to sign and become part of the the affidavit if you'll scroll down please uh now this at the note at the at the very bottom says judge monroe are you still with us um it seems we're having technical difficulties and we just lost judge monroe and give me a few minutes to see if he lost connection okay can everybody hear me now yes you're back on judge okay i apologize for that i have a zoom hearings that start immediately after this and i was the system was treating me as though i was back in uh with a zoom meeting and i had a question across the board across the bottom of the board and i can't remember the question now and i cannot see the form i don't know if you need to reset the form up or not okay the note at the bottom of these of these columns are in all estates doesn't make a difference what it is in all the states the first two share columns are mandatory even if there is no known separate property the third shirt column is used when there is a surviving spouse for separate real property use le for life estate and stle for subject to a life of state and we require everyone every heir to join in every air that who would be entitled to property under uh chapter 201 to join the affidavit it is a notice issue if you could scroll down please one of the things i want to point out here this is a part of the affidavit and the distributes this is uh a restatement or a part of 205.007 every person that signs the affidavit all of the errors and that's why we require all of the errors even if they're not going to be receiving property it's a notice issue and if there is something wrong everyone who signs the affidavit is liable so if we have people who have not been truthful on an affidavit and they go in and they collect a bank account and then we find out there are other heirs even the distance witnesses can be sued to collect the money uh and so we we require all of these and i you would be stunned at how many of these have um a jurat that is invalid uh the the jurats if you'll scroll down a little bit please this is a durant and i've had sic the distribution signature and nothing else and the notary notarizes it if the juran is bad the affidavit's bad and they have to uh file an amended with their proper jurad and with these are checked every single piece of these are checked to make sure that it is valid and you have to have a valid jurat for each person who is signing the affidavit and we've provided on this form for four distributes and two disinterested witnesses when there are for example six or eight distributes uh you have to add pages have to add durations to get all of their signatures and these are verified against the list that are listed on all of those who are entitled to receive property and what their share is we verify each every one of those signatures uh we not we verify each that each and every one of those individuals that are listed have their signatures now i've been going fairly constant now for the past 35 minutes and i wanted to leave time for people to send in questions now the word version and this is the question that i've got uh charlotte key is the staff attorney for probate court two her email address is charlotte c-h-a-r-l-o-t-t-e dot key k-e-y at dallas county d-a-l-l-a-s-c-o-u-n-t-y dot org o-r-g i asked her if she would uh email out the word version if she receives a request and she said yes so you can send her an email saying i would like a word version and she will attach it and send it to you by way of email and then you would have it for those who don't have a adobe pro now this is an interesting point if the statute of limitations on a debt meaning that the debt is not collectible uh has run do you need to list that debt no you don't you're listing debts that are valid on the date of the affidavit and if a debt's not valid because it cannot be collected because the people sat on their rights and didn't do anything then um then yes you don't have to list those deaths now the three most common errors that i've seen on the small state affidavits and one of them is fatal and i see it approximately 30 percent of the time and that is when you're trying to pass title uh to property that's not a homestead um now here's the situation let's say that uh mom's a widow she is in the the family homestead that she has had for 50 years mom passes away and she's got three adult children jack james and janey and so an attorney says well i can transfer that homestead to jack james and janey and they follow some allstate affidavit that's fatal you cannot use a small state affidavit to pass title to that real estate because homestead interest is a possessory interest and the minute mom died there's no more homestead you have to do a determination of airship with a with an administration to pass title to that house and i see that all the time uh trying to pass the title to uh to a piece of property that you may think has a homestead on it but it doesn't that's number one uh the second biggest mistake i've seen [Music] the 75 000 limit is a hard and fast brightline black letter law rule and we do the math and i have had attorneys who will submit a small state affidavit that says estimated value of a bank account is 70 70 000 and a couple other assets and they say they're under 75. we're going to require you to uh to prove up the ah non-probate assets yes they are included and um because 205 requires that all assets be listed now if the non-probate assets are exempt this is where a classification of the asset is very critical is it exempt or not so yes you have to list all assets probate and non-probate but the getting back to the three most common mistakes one is in execution one is in uh trying to pass title to real estate that you cannot um and the third one is durat execution i see durat execution problems on a continual basis and i'm what happens is that i've seen this an attorney will fill out a small state affidavit for a family that's got uh eight distributes and uh their client says well i'll go get everybody's signature and they take the affidavit and they run around to three or four different notaries and somebody doesn't sign it properly it gets rejected and that can be very very frustrating now in terms of just general questions i think i can click on this chat button to see questions can a can a person agree that their permanent residence is in texas with their adult children if they are working out of state with the texas probate courts recognize this uh if they're doing it if you're not trying to pass title to real property yes you if everybody says dad lived at uh 2412 mcclure irving texas and he was working out of state uh but his intent was to return back to 2412 mcclure sure um that's his that's his residence uh you don't have to prove it up but typically where is he registered to vote um life insurance is included and we've seen small state affidavits used frequently to collect life insurance policies let me see so life insurance is included now the next question that i have is um why do you need to list non-probate assets if if they have passed already and you're not trying to collect them um 205 it's it's what the code requires but it's it's the assets for example if if the asset doesn't exist anymore uh because it's already been collected and dispersed out you don't have to list it so if you've already collected a life insurance policy that's paid out per its terms it's not an asset of the estate but if you're if you're using the uh small state affidavit to collect a life insurance policy then you have to list it the next question is would i suggest a small state affidavit prior to handling a foreclosure for an adult child living in deceased mom's home well what purpose if you're trying to do mom's estate and mom has the house and um there is no spouse you cannot use the small state affidavit uh prior to the foreclosure because the small state affidavit would not be approvable in that context he said the next question is i mentioned if a will was made one can't use a small state affidavit uh what if the will wasn't probated within the time limits of the estates code well number one you can probate a will as a munimate of title after four years number two you can under section 301 the four-year limitation has an exclusion you can use a uh use section 301 to ask for letters after four years under a couple of certain circumstances the fact that there is a will means that you cannot use a small state affidavit pension plans that have a distribution pension plans are exempt property they have to be listed you list them they pay out according to their terms and they are exempt under chapter 42 of the texas probate texas property code excuse me and then the next question is would the beneficiary not collect on the life insurance policy and a beneficiary wouldn't would but there are times and my own uh stepfather on his life insurance policy um put out that it would be paid to his estate and that was allowed by the insurance company and then you had to do an action to get that policy so yes you you can use the small state affidavit to collect insurance policies and i've seen that happen many times um don't have any more questions we've got a few more minutes uh judge we do have a few questions from the q a box and i can go ahead and read a couple of those to you um okay how are jurat done with the distribution in different countries or different states i've seen this happen i've had distributes that are in europe and i've seen the attorneys email them a copy of the small state affidavit and that they go to the u.s consulate and have their signature notarized at the u.s consulate i've seen them at the u.s consulates down in mexico so it's it's you end up having a very lengthy small state affidavit but uh you can tack a small state affidavit with a uh a jurat that's properly executed uh outside the united states to a uh to to the smallest small state affidavit that's trying to to enter into the court uh what is the best method to transfer separate real property that is the only asset to deceitness for kids well that would be through a determination of airship with no administration the order on the determination of airship indicates that there is no administration and it contains the text that's required under a muniment of title now the next question uh says did uh did you just say a small state affidavit could be used to get the proceeds from a life insurance policy as long as the policy is under 75 000 dollars uh yes if you have a ten thousand dollar burial policy i've seen set many small state affidavits to collect that type of an insurance policy uh if it's under seventy five if you get a 150 000 life insurance policy can't use a small state affidavit and says what if the decedent did not designate a beneficiary that's where you would use a small state affidavit because the decedent did not uh indicate a beneficiary it would go into the to the decedent's estate uh and then the next question are non-probate assets like pay on death accounts listed as exempt from the 75 000 limit if they've already been paid out and collected their uh they're not listed on it but they it depends upon what the asset is as to whether they are exempt or not if it's a a pay on death checking account it's not exempt but if it is a pay on death uh retirement account it is exempt you have to analyze each of the assets according to whether they're separate or re or community property and then once you've determined whether they're separate or community are they exempt or not using chapter 42 of the texas property code and also for items from the texas insurance code would the beneficiary not collect last last clarification 401k and pension can pass through a small state as well yes they can because 401k and pension are exempt assets under the under uh the texas property code do i have any other questions well you're oing to love me because we're supposed to stay here for 50 minutes or uh 46 47 minutes i think that's good enough for me i hope it's good enough for you uh you will need to um yes thank you judge um please report your cle credit to your state bar of texas profile i can read out the cle number and that is one seven four zero eight eight three eight two and again it's also included in the chat function um you'll also receive an email with that number following today's presentation um if you would like a copy of the small estate affidavit again please email charlottekey um and her email is also listed in the chat again thank you judge for presenting um and everyone for joining us this afternoon all right and the last thing i do want to say is uh probate court ii is um having a series of uh presentations as part of a probate summer school we were working in connection with the dallas bar association's probate bar section and um next tuesday is going to be one of our first sessions um and it's going to be as beneficial as a small state affidavit session you you saw today so i'm going to recommend if you've got the time to to go to probate summer school and a shout out to elaine mosher who i used to work with back when i worked for legal services and with that i'm going to leave the session we're at 12 59 and that's 49 minutes out of 50. and to all the people who are telling me thank you you're all very welcome thank you everyone have a good rest of your day