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Oil and gas and mineral rights litigation is complex, and requires skilled legal representation.
As an attorney practicing in the oil and gas space for more than a decade, I understand the complexities and challenges that come with inheriting mineral rights. Many landowners find themselves in a situation where they have inherited mineral rights from a family member but have little to no knowledge about the extent and value of their interest. In this guide, I will walk you through the process of verifying inherited mineral rights and addressing common issues encountered. Step 1: Locating the Interest in Public Records and Maps The first step in verifying your inherited mineral rights is to locate the interest in public records. The document(s) that created the interest will contain the language needed to determine what and how much you own. Depending on the state, land records may be available online for free or for a fee, or they may be accessible only by visiting the County Clerk's office or Recorder or Register of Deeds office in person. To begin, visit the county website where the minerals are located and check if they have a link for searching land records online. You can also call the office and ask for assistance. The recorder or clerk will not search for you, but they will give you information about their records and how to search. Some states, like Texas, have third-party providers that offer online access, such as texasfile.com, so if you strike out trying to search directly at the county level, look for comprehensive third party providers. If this process is overwhelming, contact someone who does it every day. An attorney or oil and gas landman or abstractor can help you. Once you have identified the deed or instrument of record that created the oil and gas interest, you will want to find the property on a map to confirm if there are any wells nearby. In Texas, Pennsylvania, and Ohio, you can access GIS mapping information through state regulatory websites, such as the Railroad Commission of Texas , the Pennsylvania Department of Environmental Protection , or the Ohio Department of Natural Resources . You may also need to use the county's GIS website to locate a particular parcel of land, and then find that land on the state regulatory site. Click around your property to identify active wells, access production and permitting information, etc. Step 2: Analyzing the Deed Language and Understanding the Nature of the Mineral Interest As an attorney, I cannot emphasize enough the importance of analyzing the language in the deed to determine the type and extent of your mineral interest. Each state has its own laws governing deed interpretation, but generally, courts look to the "four corners" of a document to determine the intent of the parties to a conveyance. Mineral interests can be thought of as a "bundle of sticks," which includes various rights such as the right to sign leases, receive bonuses, royalties, delay rentals, and the right to produce (ingress and egress). There are several types of mineral interests, with the most common being the nonparticipating royalty interest (NPRI) and the full mineral interest (which includes all rights in the bundle of sticks). However, mineral interests can be divided in numerous ways, and state law ultimately determines the specifics of these divisions. For instance, you can own a mineral interest but have no right to royalties; you can own the right to sign leases but no right to bonuses or royalties; you can own a non-participating mineral interest which is an interest in the minerals with no right to sign leases, and so on. The rights you have will be determined by the language in the conveyance and state law applied to it. An attorney should analyze the deed language to ensure proper understanding and classification of the inherited mineral interest. Keep in mind that ambiguities in deed language can lead to different interpretations, and different attorneys might have varying opinions on the meaning. Consulting an attorney experienced in real property law and mineral rights is crucial to navigating these complexities. Just as you wouldn't go to a podiatrist for stomach issues, don't ask your family law lawyer to interpret your oil and gas deed. Step 3: Determining if the Interest is Producing To determine if your inherited mineral rights are producing, check if the person you inherited the interest from was receiving royalty payments. If that's the case, you already know it's producing, as royalties are paid on production. If you aren't receiving royalties, explore the state regulatory agency's website or mapping tools to find permitted or producing wells. Sometimes the property's inclusion in a producing unit is evident, while other times it may be unclear. Perhaps you learned about the interest because a landman, mineral buyer, or oil and gas operator reached out to you. Find out if a well is planned and when it will be drilled, and negotiate favorable terms in your lease. For negotiation tips, see our post on key considerations when negotiating an oil and gas lease . For some context, a producing unit, also known as a spacing unit or drilling unit, is a designated area of land established for the production of oil and gas. These units are created to prevent waste and protect the correlative rights of mineral owners. It is essential to know if your land is included in a producing unit, or will be included in a unit, as this will affect the value of your inherited mineral rights. Step 4: Addressing Common Title Defects and Other Problems When verifying inherited mineral rights, it's crucial to be aware of potential title defects and other issues that may arise. These defects can hinder a mineral sale or purchase and prevent royalties from being paid. Some common issues to address include: Ambiguity in deed language or legal descriptions: Ambiguous language in deeds can create competing claims to the same interest. Examples include fixed vs. floating royalties, whether the interest is a royalty only or a full mineral interest, and property descriptions that call to old landmarks that no longer exist (such as an old road, fence line, stream, or creek bed). Dormant mineral statutes: In Ohio, the Dormant Mineral Act (ODMA) and the Marketable Title Act (MTA) can cause a mineral interest to be abandoned due to non-development, potentially extinguishing the mineral interest and re-vesting it with the surface owner. It's important to note that Pennsylvania and Texas do not have such dormant mineral statutes. Unprobated estates: Sometimes, when a person dies, there is no need to probate their estate, which can lead to difficulties in tracing the ownership of a mineral interest. This issue can arise when the deceased person did not know they owned the mineral interest or when they acquired it through another unprobated estate. In such cases, it may be necessary to research entire family trees to determine the current owner of the mineral interest and open multiple probates as required. Each state has its own procedure for handling these situations, with some allowing for an affidavit of heirship as an alternative to probate. Step 5: Consulting an Attorney for Title Curative Work and Legal Guidance Navigating the complexities of inherited mineral rights can be challenging, and it is highly recommended to consult an attorney to assist you in the process. An attorney can help with title curative work to release suspended royalties or close a mineral sale. They can also provide guidance on deed interpretation, state laws, and resolving any issues that may arise during the verification process. By following the steps outlined in this guide and seeking the assistance of an experienced attorney, you can gain a better understanding of your inherited mineral rights. Be mindful that the steps above assume that you truly inherited mineral rights. Just because a mineral buyer or operator approached you with an offer to purchase or a lease does not mean that you actually own anything. You should always verify that you truly have an interest in the minerals, oil, and gas, before signing any affidavit of heirship or warranting title to interests sold or leased. You can ask the mineral buyer or operator to supply their research documenting how you came to own the interest. If they do not provide it, you can conduct your own independent research in deed and probate records. Heirship companies, land services companies, and attorneys can assist you with this research. Inheritance laws can be complicated and each state has different rules that apply. Feel free to reach out to our law firm for assistance with any questions related to your inherited mineral rights. We are here to help you make the most of your valuable asset. Call 817-645-3993 or schedule an appointment online .
As an experienced estate litigator at Bradley & Hammond, I have witnessed firsthand the turmoil and heartache that can arise from estate disputes. When families find themselves in conflict over inheritance, emotions often escalate, resulting in a downward spiral of hostility and legal battles. This "conflict spiral" typically starts with minor disagreements and miscommunications that gradually snowball into larger disputes, culminating in litigation. Understanding the leading factors that drive estates into litigation can help you better prepare for and navigate these challenging situations. In this article, I will discuss the five most common factors that contribute to estate litigation in Texas and share my insights on how to resolve these issues effectively. Factor 1: Will Contests One of the primary factors leading to estate litigation is disputes over the validity of a will. A will contest occurs when an interested party challenges the legitimacy of a decedent's will, usually on one or more of the following grounds: Lack of testamentary capacity: The testator (person creating the will) must have been of sound mind and capable of understanding the nature and extent of their property, the people they were benefiting, and the implications of the document they were signing. An example would be a situation where an elderly parent creates a new will shortly before passing, leaving their estate to a caregiver while excluding their children, raising suspicions about the parent's mental capacity at the time of drafting the new will. Undue influence: This occurs when the testator's free will is overcome by the coercion or manipulation of another person, often to that person's advantage. For instance, a relative who isolates the testator and pressures them to change the distribution of their estate in favor of that relative could be exerting undue influence. Fraud: Fraudulent conduct can lead to a will contest if the testator was deceived or tricked into signing a document they believed to be something other than a will. For example, a family member might present the testator with a document claiming it to be a power of attorney but is, in fact, a new will that benefits the family member. Improper execution: In Texas, a will must comply with specific formalities to be considered valid. This includes being signed by the testator (or someone at the testator's direction and in their presence), in the presence of two or more credible witnesses who also sign the will (Texas Estates Code § 251.051). A will can be contested if it fails to meet these requirements. As a fierce advocate for my clients, I always strive to resolve will contests through negotiation and mediation, when possible. One of the best ways to avoid will contests is through meticulous estate planning and open communication with all interested parties. Factor 2: Trust Disputes Trusts are valuable tools in estate planning, but they can also be a source of conflict. Trust disputes often arise due to disagreements over the interpretation of trust provisions, trustee management, or allegations of breach of fiduciary duty. Here are some common trust-related issues that can lead to litigation: Interpretation of trust provisions: Trust documents can sometimes contain ambiguous language or unclear instructions, resulting in disputes among beneficiaries or between beneficiaries and the trustee. In Texas, courts can be petitioned to resolve ambiguities in a trust document (Texas Property Code § 112.054(a)). Trustee mismanagement: Beneficiaries might allege that a trustee has mismanaged trust assets, failed to provide proper accounting or failed to distribute assets according to the trust terms. A trustee has a duty to act in the best interests of the beneficiaries, and failure to do so can lead to litigation. In Texas, a trustee's actions can be subject to judicial review, and the court may remove a trustee if it finds a breach of fiduciary duty (Texas Property Code § 113.082). Breach of fiduciary duty: Trustees have a legal obligation to act in the best interests of the trust beneficiaries. This includes managing the trust assets prudently, avoiding conflicts of interest, and providing accurate and timely information to the beneficiaries. When a trustee is accused of breaching these duties, a dispute may arise that requires litigation to resolve. Like will contests, many of the issues that materialize with trusts can be avoided with careful estate planning. Trustee mismanagement issues in particular can be avoided by properly educating the trustee on his or her duties, picking the proper person to serve as trustee from the outset, or providing proper oversite and mechanisms for trustee removal. Factor 3: Guardianship Disputes Guardianships are established to protect and manage the affairs of individuals who are unable to make their own decisions due to mental or physical incapacity, including minor children. Disputes can arise when there is disagreement over the appointment of a guardian, the actions of the guardian, or the necessity of a guardianship. Some common reasons for guardianship disputes include: Necessity of guardianship: Family members or other interested parties may dispute whether a guardianship is truly necessary or whether a less restrictive alternative, such as a power of attorney or a supported decision-making agreement, might be more appropriate. Qualifications of the proposed guardian: Disagreements may arise over who should be appointed as a guardian, with family members or other interested parties questioning the qualifications, character, or motives of the proposed guardian. Breach of fiduciary duty by the guardian: A guardian has a legal obligation to act in the best interests of the ward (the person subject to the guardianship). If the guardian is accused of mismanaging the ward's assets, neglecting the ward's needs, or otherwise acting improperly, a dispute may arise that requires litigation to resolve. Factor 4: Joint Ownership and Beneficiary Designation Conflicts Joint ownership and beneficiary designations play a significant role in estate planning, but they can also lead to disputes. Here are some common issues that arise from joint ownership and beneficiary designations: Ambiguous or outdated designations: If a beneficiary designation is unclear, outdated, or inconsistent with other estate planning documents, disputes may arise among potential beneficiaries or between beneficiaries and the estate's personal representative. It is crucial to review and update beneficiary designations regularly, especially after major life events like marriage, divorce, or the birth of a child. Disagreements among joint owners: When property is jointly owned, disputes may arise over the management, use, or disposition of the property, particularly when one owner passes away, and their interest in the property passes to their heirs or beneficiaries. If the disagreements cannot be resolved outside of court, it often devolves into a partition action (in the case of real estate) which can be time consuming and costly for the joint owners. Family dynamics and disputes: Conflicts can arise due to pre-existing tensions among family members, differing opinions on how assets should be managed or distributed, or concerns about favoritism or unequal treatment. Factor 5: Creditor Claims Estate litigation can also arise from creditor claims against a decedent's estate. When a person passes away, their debts do not simply disappear; instead, their estate becomes responsible for settling any outstanding debts. Some common issues with creditor claims include: Disputed debts: Heirs or beneficiaries may challenge the validity of a debt, claiming that the debt has been paid, is invalid, or is otherwise unenforceable. Disputes can arise over the amount owed, the terms of the debt, or the legitimacy of the creditor's claim. Insufficient estate assets: If the decedent's estate lacks sufficient assets to cover all outstanding debts, disputes may arise among creditors or between creditors and the estate's personal representative over the priority and distribution of assets. Priority of claims: In Texas, certain creditor claims take priority over others (Texas Estates Code § 355.102). Disputes can arise over the proper classification and priority of claims, particularly when there are insufficient assets to satisfy all outstanding debts. Estate disputes can be complex, emotionally charged, and challenging to navigate. Understanding the leading factors that drive estates into litigation is crucial for anyone facing estate litigation in Texas or looking to initiate litigation. You should also understand, however, that winning any of these battles in court is extremely difficult and rare. Predicting success is almost impossible unless you have a slam-dunk case. When you approach an attorney for representation in an estate dispute, you should put your feelings aside and ask for a neutral evaluation of your case to help you determine whether litigating is worth your time, money, and stress. Will litigation itself cost you more than the inheritance you seek is worth? Can you resolve the issue with mediation instead of going to court? At Bradley Law Firm, our goal is to help clients avoid estate disputes through careful planning and open communication. If litigation is inevitable, however, we educate our clients and empower them with the information they need to initiate successful litigation or defend their rights. If you are facing estate litigation or concerned about a potential dispute, I encourage you to reach out to our experienced estate litigation team. We are here to guide you through the process and protect your interests every step of the way.
When it comes to estate planning, creating legally valid documents, such as wills, trusts, and powers of attorney, is crucial to ensure that your assets are distributed according to your wishes upon your passing and that your healthcare and financial affairs are properly managed. In Texas, as in every state, there are specific legal formalities that must be adhered to when signing these estate planning documents. Failing to follow these formalities could render your documents invalid, leaving your estate to be distributed according to state intestacy laws, which may not align with your intentions, or making it difficult for your loved ones to manage your affairs during times of incapacity. In this comprehensive guide, we will delve into the intricacies of estate planning document signing formalities in the Lone Star State. Our aim is to equip you with the knowledge necessary to create legally sound estate planning documents that stand up to scrutiny and provide the peace of mind that your final wishes will be honored and your affairs properly managed. First though, you need to understand some legal terms of art: A testator is a person who makes and executes a will. A person who dies with a will is said to die testate , while a person who dies without a will is said to die intestate . A will is a legal document that outline's a person's wishes regarding the distribution of their assets, property, and care of any minor or disabled persons upon their death. A holographic will is a will that is written in the testator's handwriting and signed by the testator. A non-holographic will is a type-written will signed by the testator in the presence of two credible witnesses. Sometimes it will be self-proving, meaning it has a self-proving affidavit signed by the testator, witnesses, and a notary public. A trust is a legal arrangement (contract) in which one party, known as the grantor or settlor , transfers assets to another party, called the trustee , who holds and manages those assets for the benefit of one or more beneficiaries . Trusts can be established for various purposes, such as estate planning, asset protection, or providing financial support to minors or individuals with special needs. Trusts can be revocable , allowing the grantor to modify or terminate the trust during their lifetime, or irrevocable , which cannot be changed or terminated once established (although they sometimes can through decanting or court order). The trustee has a fiduciary duty to manage the trust assets in accordance with the terms of the trust document and in the best interests of the beneficiaries. A durable power of attorney (POA) is a legal document that allows an individual, known as the principal , to grant authority to another person, called the agent or attorney-in-fact , to make decisions and act on their behalf in financial, legal, and personal matters. The term " durable " means that the POA remains in effect even if the principal becomes incapacitated or mentally incompetent , unlike a general power of attorney , which would become invalid under those circumstances. A durable POA can be tailored to the principal's specific needs and preferences, granting either broad or limited powers to the agent. It can be effective immediately upon signing or become effective only upon the principal's incapacity, known as a " springing " durable power of attorney. A Physician's or Medical Directive is a written instrument where the declarant , the individual who makes and executes the directive, expresses their preferences and instructions regarding medical treatment and end-of-life care. The declarant specifies their wishes in the document to guide healthcare providers and appointed agents in making medical decisions on their behalf, particularly when the declarant becomes unable to communicate or make decisions due to illness or incapacity. A medical directive may include a living will , a durable power of attorney for healthcare , or a combination of both. Wills A non-holographic will must be signed by either the testator in person or by another person on behalf of the testator in the testator's presence and under the testator's direction. Additionally, a non-holographic will must be attested by at least two (2) credible witnesses who are at least 14 years of age and sign the will in their own handwriting in the testator's presence. A credible witness is a competent witness who receives no financial benefits under the will and is therefore competent to testify regarding the will's execution. A will is not automatically invalidated if a beneficiary or other interested person serves as a witness, but it could significantly affect any intended bequest to the witness. A gift in the will to a witness is void unless certain conditions are met, such as the witness being entitled to a share of the estate had the testator died intestate. On the other hand, a holographic will must be written entirely in the testator's handwriting and signed by the testator. A holographic will cannot be signed by another person on the testator's behalf and does not need to be attested by any subscribing witnesses. Despite being less formal, holographic wills can still be legally recognized in Texas as long as they meet the necessary requirements. There is no requirement for a will to be notarized in Texas unless the will is self-proved. A self-proving affidavit or simultaneous attestation is not required to make a valid will, but it will simplify the probate process and is a best practice among estate planning attorneys. Trusts In Texas, a trust can be created orally (in limited circumstances) or in writing (Tex. Prop. Code Ann. § 112.001). Unless the trust meets the limited exceptions for a valid oral trust, a trust is only enforceable if its terms are evidenced by a written instrument that is either: (1) Signed by the settlor or the settlor's authorized agent or (2) Created by the court. Texas law does not require a revocable trust instrument to be witnessed to be valid. Texas does not require a trust instrument to be notarized to be valid, but notarization is a best practice. If the trust may hold real property and need to be recorded in the real property records, you should have the trust acknowledged and notarized so the trust instrument can be recorded. Financial institutions also often require that trust instruments be written and notarized to avoid fraud. Durable Power of Attorney To be valid, the durable power of attorney instrument must be signed either by the adult principal, in the adult principal's conscious presence by another adult at the direction of the principal to sign the principal's name. Texas does not require the power of attorney to be witnessed. The power of attorney however must generally be acknowledged by the principal before a notary public. Medical Power of Attorney To be valid, a medical power of attorney instrument must be signed by the adult principal. If the adult principal cannot sign, it can be signed in the adult principal's presence by another person at the direction of the principal to sign the principal's name. The principal's signature must be either made in the presence of two witnesses or in the presence of and acknowledged by a notary public. Physician's or Medical Directive The declarant must sign the directive to physicians. The declarant's signature must be either made in the presence of two witnesses or in the presence of and acknowledged by a notary public. HIPAA Release The principal must sign and date the HIPAA release. Other people, referred to as personal representatives under the HIPAA regulations, sometimes may sign the HIPAA release on the individual's behalf. These people include the health care agent or agent for an adult or emancipated minor, the parent or guardian of an unemancipated minor in some situations, the fiduciary in charge of a deceased individual's estate. Witnesses are not required for a valid HIPAA release, and neither is a notary. Can you sign estate planning documents with an electronic signature? Texas has adopted the Uniform Electronic Transfers Act (UTEA). The UETA authorizes electronic signatures for certain transactions. A transaction is defined as "an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs. However, the UETA does not apply to laws governing the creation and execution of wills, codicils, or testamentary trusts, and is generally understood to not apply to other documents executed with an estate plan (such as powers of attorney and advance health care directives) because these types of documents are typically not related to a transaction as defined under the UETA. What about witness signatures? Wills, trusts, powers of attorney, and advance health care directives generally cannot be witnessed electronically in Texas. There is an exception for Advance Directives Not Prepared by Attorney. Advance health care directives in Texas can be signed, witnessed, and notarized electronically in certain circumstances. These electronic executions are specifically authorized under the Texas Health and Safety Code, not the Texas UETA, and include various restrictions that prevent most attorneys from recommending that clients execute these instruments electronically. What about remote notarization? Texas law permits notaries to conduct notarizations remotely, as authorized by a statute. According to the statute, an individual may "personally appear" before a notary using a two-way audio and video communication system, as long as it adheres to the procedures established by the Secretary of State. Nonetheless, the statute's wording implies that online notaries are only allowed to notarize electronic signatures . Since the Texas Uniform Electronic Transactions Act does not authorize testators to sign wills and codicils electronically, it is not possible to notarize wills online in Texas. In conclusion, navigating the complexities of estate planning and ensuring that your will and other essential documents are legally valid is crucial for safeguarding your assets and fulfilling your final wishes. Understanding the specific requirements for signing wills, trusts, durable powers of attorney, and medical directives in Texas can provide peace of mind and help you create a solid estate plan. By adhering to the state's guidelines and seeking professional advice, you can ensure that your will and other documents will stand up to scrutiny and protect your family's future. As you embark on this important journey, remember that knowledge is power. This guide has provided you with an overview of the legal formalities and processes involved in creating and executing wills and other estate planning documents in Texas. Armed with this information, you can confidently take the necessary steps to secure your legacy and provide for your loved ones. Estate planning is an ongoing process, so be sure to review and update your documents periodically to account for any changes in your life or the law. Contact us at Bradley & Hammond for a consultation if you have any questions. Have more questions about estate planning? Check out our blog for more helpful information, or visit our estate planning page.