We are a law practice that focuses on land litigation, ownership in real estate, partitions, condemnation, and landowners facing condemnation.

Let’s talk about about the importance of having a will for succession planning in land ownership.

Often we’re dealing in partitions, or even sometimes in condemnation cases, where multiple people own some property and possibly some of those folks have passed away. The property gets further divided by more and more descendants. This becomes an issue.

If You Own Land, You Should Have a Will

So first off, it’s extremely important to have the basic estate planning documents. If you own land, it’s really important to have a will as part of your estate plan. If the person has a valid will, whatever that will says, that will acts as a conveyance document to pass the interest of that land to the beneficiaries in the will.

Now oftentimes in an administration of an estate, land needs to be sold to pay debts and then the money is divided. So land does not always get divided exactly the way the will may say subject to an administration. However, if land is not passed by a will or another alternative method when the owner of the land passes away that interest is going to pass according to the intestacy laws in the State of Texas.

There Are Many Different Scenarios for Passing Property under Intestacy

One scenario is if you pass away and you have a wife, but no children. Another situation might be that you pass away and are predeceased by your spouse but you have no children. Or maybe you have children from multiple marriages. Perhaps you’re single without any kids. Maybe your parents have passed away leaving their property to you and your siblings.

All of these different scenarios on how property passes depend on it’s characterization. Is it separate property? Is it community property? Also, is it personal property or land?

The point of showing you the chart is to emphasize the point that most people want to have a say over the disposition of their land. So if you are one of those folks who wants to decide how your land is going to pass, then you need to have a well-done and validly-executed will.

Some Other Ways to Avoid Passing Land under Intestacy

You can also accomplish some of the same things with a transfer on death deed. That’s something that’s now available in the State of Texas.

A Lady Bird deed is another possibility. A Lady Bird deed is pretty basically a gift deed in which you gift the land away but reserve a life estate with power to sell the land. So that’s another option.

Or you can have a gift deed or just a regular deed, but you reserve the life estate so upon your death, fee simple title vests in the person that you’ve already conveyed the land to. Succession planning in land ownership can be addressed by either by will, a transfer on death deed, a Lady Bird deed, a deed with one of these components like reserving a life estate, or you could even just reserve a life estate for a few years and then upon a few years, even before you pass away, it could vest in the other person if that’s what you wanted to do.

What Happens if You Don’t Do Succession Planning for Your Land

There are lots of options, but once again it’s much easier, cheaper and more wise to take care of succession planning in land ownership before you pass away. If you leave it to the intestacy laws of Texas, then your family will have to file an application and ask the court to declare heirship. The court will appoint an Ad Litem attorney to represent the unknown heirs. That’s an additional cost.

Your family will have to find some disinterested witnesses who have known you and can speak about the your family history. Then your family will have to go to court and have a hearing. Oftentimes is not a complicated hearing, but it can be if there’s a dispute over heirship.

So it’s much simpler if a person has a will or one of these other alternative methods to provide for succession planning in land ownership. If you own an interest in land, please, please go ahead and take care of the succession planning for that land.