Texas REPTL

09/22/2020

The Texas Title Examination Standards Editorial Board is approved jointly by REPTL and the Oil, Gas and Energy Resources Law Section to propose standards to Texas title examination practitioners, which are included in the Property Code. The board chair is REPTL member William Burford of Midland.

A proposed revision is available for review below. If you are interested in title examination issues, please review this draft and provide your comments to:

Texas Title Examination Standards Editorial Board
Attn: William Burford, Chair
Kelly Hart & Hallman LLP
500 West Illinois Avenue, Suite 800
Midland, Texas 79701
[email protected]
432-688-0412

09/22/2020

REPTL has submitted its draft legislative package to the State Bar of Texas for review and approval.

The Real Estate Division has three bills clarifying and updating the Property Code to, among other things, eliminate all outdated cross references (such as to Vernon’s), remove references to repealed statutes (such as the Residential Construction Act), remove references to the “yellow pages,” and otherwise make the Property Code more current. All changes are non-substantive.

The Probate Division has seven bills on a variety of estate, trust, guardianship, and power of attorney topics which are a combination of clarification and substantive.

Links to each bill or set of bills are provided in the comments below this post.

Thanks to Roland Love, Craig Hopper, and Lauren Hunt for their leadership on the 2021 REPTL legislative package.

All REPTL bills were approved by the State Bar Legislative Sub-Committee and are to be considered by the full State Bar Board September 25. Bills will be pre-filed in December. Be on the lookout for future updates on our legislative package.

05/02/2020

Remote Notarization of Real Estate Documents

Governor Greg Abbott previously issued an executive order allowing a regular notary to acknowledge certain estate planning documents by video conference. The governor has now issued a second executive order allowing a regular notary to acknowledge real estate documents by video conference. However, the procedure for video acknowledgment of real estate documents differs somewhat from the procedure for video acknowledgment of estate planning documents, so we encourage our real estate members, especially, to review this new order.

05/02/2020

Our real estate division is now also taking an active role in proposing new legislation. The real estate division approved several proposals:

• Removing or correcting numerous obsolete statutory references.

• Moving statutes to a more logical location.

• Replacing obsolete references to “yellow or business pages of a telephone directory.”

• Adding procedural details regarding notice addresses for tenants and landlords to fill gaps in current law.

• Clarifying that condominium and property owners associations may conduct electronic meetings and votes.

We anticipate that REPTL will be increasingly active in proposing real estate legislation in future sessions.

05/02/2020

Our council recently completed its spring meeting, approving plans for the coming bar year.

Probate Division Proposals Inspired by the Pandemic

In addition to its regular legislative program, the probate division approved several proposals prompted by the COVID-19 pandemic:

• A proposal providing or clarifying that unsworn declarations may be used for oaths of personal representatives and other probate and guardianship filings, avoiding the need for a notary.

• A proposal authorizing the approval of routine, uncontested probate applications by written submission, avoiding the need for a hearing.

• A proposal providing or clarifying that durable powers of attorney and declarations of guardian may be signed and acknowledged electronically, avoiding the need for ex*****on in the presence of another person. This is already the case for medical powers of attorney and directives to physicians.

• A proposal allowing durable powers of attorney, medical powers of attorney, directives to physicians, declarations of guardian, trust agreements, and perhaps other documents to be signed in the traditional way (by "wet ink" signature) but acknowledged by a traditional notary via video conference. The council is continuing discussions on what other documents, if any, might be subject to this proposal.

The council also considered a proposal to allow witnessing of wills by video conference, either by adoption of the Uniform Electronic Wills Act or otherwise. However, in view of the complex legal issues presented by this proposal and questions about how various provisions of the Uniform Act would apply, most probate division council members felt that the proposal requires further study. REPTL may seek expedited approval from the state bar to address this issue after the regular approval process concludes this summer. In view of the unusual circumstances presented by the pandemic, we believe the state bar would likely still approve action by REPTL after the usual deadline.

Other Probate Division Proposals

The probate division also approved a broad range of other proposals. Highlights include:

• Allowing various probate and guardianship notices to be sent by private delivery services approved by the IRS, rather than certified mail.

• Eliminating the requirement that probate applications include the last three digits of the applicant’s social security and driver’s license numbers.

• Harmonizing the provisions of the Tax Code and Property Code relating to a homestead held in a revocable trust, to preserve both the property tax exemption and protections from creditors’ claims.

• Clarifying that trust property subject to a testamentary general power of appointment is not subject to claims of the powerholder’s creditors, unless the power is actually exercised.

• Clarifying that when trust assets are decanted to a new trust, the new trust may use the same name and taxpayer identification number to the extent permitted by federal law.

• Allowing a statement of anatomical gift to be acknowledged by a notary public in lieu of being witnessed by two adults.

• Allowing use of Medical Powers of Attorney that are not in the statutory form, provided the document satisfies certain minimum requirements.

• Clarifying that the standard powers granted by a statutory Durable Power of Attorney include the power to manage membership interests in LLCs.

• Clarifying available termination provisions for a guardianship management trust (including allowing a court to extend a guardianship management trust for an incapacitated minor until the minor’s death or removal of incapacity).

• Clarifying how a nonresident guardian may withdraw proceeds from the sale of Texas property.

• Clarifying numerous other guardianship provisions and harmonizing these provisions with their probate analogues.

04/10/2020

The Texas Land Title Association (TLTA) has asked Governor Abbott to relax notary requirements for real estate documents. However, TLTA suggests a somewhat different approach for real estate documents than the Governor took in addressing estate planning documents. The text of TLTA's letter and proposed order are posted at the following links:

https://tinyurl.com/rgcz9wc

https://tinyurl.com/su6x93z

04/10/2020

The official text of the Governor's order suspending certain notary requirements is now posted on the Secretary of State's website.

The Office of the Governor is in receipt of OAG’s request to temporarily suspend certain statutes concerning appearance before a notary public.

04/09/2020

Over the past two weeks, REPTL has communicated with the Governor’s office about ex*****on of estate planning documents during the health crisis. Governor Abbott has now issued an order temporarily allowing regular notaries to acknowledge certain documents by videoconference.

Specifically, this order applies to:
• self-proving affidavits for wills;
• durable powers of attorney;
• medical powers of attorney;
• directives to physicians; and
• oaths of executors, administrators, and guardians.

The notary must take appropriate steps to verify the signer’s identity, as described in more detail in the linked press release; the signer must transmit a legible copy of the signed document to the notary by fax or electronic means; and the notary may then acknowledge the transmitted copy and transmit it back to the signer by fax or electronic means.

Please note that the order does not modify any physical presence requirements for a witness, only for a notary.

Governor Greg Abbott today suspended certain statutes concerning appearance before a notary public to execute a self-proved will, a durable power of attorney, a medical power of attorney, a directive to physician, or an oath of an executor, administrator, or guardian. These suspensions temporarily ...

04/03/2020

Small law firms across Texas have been crippled because of “stay at home” and “shelter in place” orders due to the coronavirus pandemic. Most recently,

03/24/2020

Legislative Update Leadership Academy - Deadline April 1

As a reminder, the application deadline for REPTL’s Leadership Academy has been extended to 11:59 p.m. Central time on April 1, 2020. This is a great opportunity for attorneys in their early years of practice to get involved in the section. The next class year will be from August 2020 to March of 2021. For more information on the Leadership Academy, please visit our application page:

This Website is developed for three groups. While primarily serving membersof the Section, consumers will find helpful information. Additionally, lawyerswho aren''''t Section members will find valuable information available to them

03/24/2020

We hope all our members are safe and healthy. Please let us know if we can be of help in this difficult time.

COVID-19 Issues

We are closely monitoring actions taken by other states to relax document ex*****on requirements, for possible application in Texas. We recognize that it may be unsafe to have a client, witnesses, and a notary assemble in the same place at the same time during this health emergency. A few general thoughts:

* Can Anything Be Done About the Need for Physically Present Witnesses?

We are not aware of legal authority in Texas that would allow a public official to relax the witness presence requirements for ex*****on of a will. In the absence of any likely relief, a REPTL member has suggested a creative alternative that you may find helpful in your practice. A client may execute a complex, attorney-drafted revocable trust without witnesses or a notary (neither of which is strictly required for a trust), and then with your guidance handwrite a very short pourover will leaving all assets to the revocable trust (since a will need not have witnesses if it is entirely in the testator’s handwriting, and need not be notarized except to make the will self-proved). In this way, a client may establish a complete dispositive plan for his or her probate assets without requiring any other person to be present. While this is not offered as legal advice, and we encourage all members to exercise their own professional judgment as to appropriate steps, we pass along this idea for your consideration.

* Can Anything Be Done About the Need for a Physically Present Notary?

We are exploring whether any public official may relax the requirements under current law for a notary to acknowledge documents that are not executed in the notary’s physical presence. We do want to be sure that any action taken has a strong legal basis, to avoid litigation over the validity of documents executed under relaxed standards. Pending any such action, we note that: A client may execute a valid will without involving a notary, so long as there are two witnesses or the will is entirely in the testator’s handwriting (though the will will not be self-proved); a client may execute a medical power of attorney or directive to physicians without involving a notary, so long as there are two witnesses; and the Health & Safety Code empowers certain individuals to act for a patient who is unable to communicate his or her medical wishes, even in the absence of a medical power of attorney or directive to physicians. We recognize that these alternatives do not address all situations, but mention them for your consideration nevertheless.

* What's Next?

- We are investigating what action if any, the Texas Supreme Court might take to provide guidance on these issues, though they generally seem to fall within the purview of the legislative and executive branches of state government.

- We have written to the Governor’s office and the Texas Supreme Court to offer assistance as a resource in addressing these issues.

- Bill Pargaman, a past chair of REPTL, has prepared a preliminary guide to alternative methods of ex*****on of estate planning documents under existing law, which our members may also find helpful. The guide is posted under “COVID-19 Resources” on this page: https://www.snpalaw.com/Resources

- We continue to explore other ways to support our members. If you have ideas, please share them with us! You can reach our Chair (and coordinator of the probate division), Eric Reis, at 214-969-1118, and you can reach our Chair-Elect (and coordinator of the real estate division), Reid Wilson, at 713-547-8504.

Here is a guide for attorneys discussing options for ex*****on of estate planning documents during this period of social distancing, along with an updated article on electronic ex*****on of estate planning documents.

02/03/2020

REPTL’s nominating committee has recommended Sipra Boyd of Houston and MarJuana Williams of Nederland for election as new Council members in our real estate division; Chris Hodge of San Antonio and Arielle Prangner of Houston as new Council members in our probate division; Denise Cheney of Austin (real estate division) as Treasurer; and Craig Hopper of Austin (probate division) as Chair-Elect and Secretary. The election for these positions will occur at our annual meeting, which will be held on June 3, 2020 at 5:30 p.m., at the Westin Galleria Hotel in Houston (during this year’s Advanced Estate Planning & Probate Course). At the conclusion of this meeting, our current Chair-Elect and Secretary, Reid Wilson, will become Chair and our current Chair, Eric Reis, will become Immediate Past Chair.