Top Questions to Ask before Signing an Oil and Gas Lease: A Guide to Negotiation

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.

In the world of mineral rights transactions, due diligence is an essential process for both buyers and sellers. It involves conducting a thorough investigation of the legal, financial, and technical aspects associated with the mineral rights in question. This process ensures that buyers and sellers can make informed decisions and avoid potential legal disputes or financial losses. In this blog post, we will discuss the importance of title examination, examples of title defects, title curative methods, who to engage for help during the due diligence process, and questions to ask about production records and the operator of producing properties. Title Examination A key aspect of due diligence in mineral rights transactions is the title examination. This is a detailed review of the mineral rights' historical ownership, conducted by a qualified professional such as an oil and gas attorney or a landman. The examination includes analyzing documents like deeds, leases, assignments, and other instruments of record to verify the current ownership, identify any potential defects or encumbrances, and ensure the proper transfer of ownership. This process allows the parties to understand the full extent of the mineral rights and any associated liabilities. Title defects are issues that can potentially cloud the ownership of the mineral rights. Examples of common title defects include: Breaks in the chain of title: Missing conveyance documents or gaps in the ownership history can create uncertainty about the rightful owner of the mineral rights. Inaccurate or conflicting legal descriptions: Errors in the legal descriptions of the property can lead to confusion about the extent of the mineral rights. Overlapping ownership claims: Instances where multiple parties claim ownership of the same mineral rights due to ambiguous or conflicting conveyances. Unreleased liens or encumbrances: Prior security interests, mortgages, or other encumbrances that have not been properly released or satisfied. Uncured probate issues: Inadequately administered estates or unresolved inheritance matters that affect the title. To address title defects, parties must undertake title curative actions. These actions help to resolve any identified issues and ensure a clean transfer of ownership. Some common title curative methods include: Obtaining corrective instruments: Acquiring documents such as corrected deeds or affidavits that rectify errors or omissions in the chain of title. Quiet title actions: Initiating a legal proceeding to resolve competing claims or remove any clouds on the title. Judicial or non-judicial probate proceedings: Addressing unresolved probate matters to establish a clear line of inheritance. Releasing liens or encumbrances: Securing proper releases from lienholders or other parties with an interest in the property. When conducting due diligence, it's crucial to engage qualified professionals with experience in the oil and gas industry. This may include oil and gas attorneys, landmen, or title agents who can navigate the complexities of title examinations, identify title defects, and guide you through the curative process. Their expertise will help minimize risks and ensure a smooth transaction for both buyers and sellers. Another crucial aspect of the due diligence process is obtaining a title opinion. A title opinion is a legal document prepared by an experienced oil and gas attorney, which provides a detailed analysis of the title examination, identifies any title defects, and offers recommendations for curative actions. The title opinion serves a similar purpose to title insurance. It helps protect buyers and sellers from potential legal disputes and financial losses that may arise due to title issues. While title insurance provides financial coverage for losses caused by defects in the title, a title opinion offers a thorough assessment of the title's current status and suggests appropriate remedies to ensure a clear and marketable title. Production Records Review If the property is currently producing, it's essential to analyze production records to gain insights into the asset's performance and future potential. This may include reviewing: Production history: Analyze historical production data to understand trends, decline rates, and the potential for future production. Revenue and expense statements: Review financial statements related to the property to gain insights into the profitability of the asset and identify any significant expenses or liabilities. Lease and operating agreements: Evaluate the terms of existing agreements to understand the rights and responsibilities of both the mineral rights owner and the operator. Regulatory filings and compliance records: Ensure the operator has maintained compliance with relevant federal, state, and local regulations, and identify any potential environmental or safety concerns. Researching the Operator For producing properties, or those that are likely to be produced, understanding the performance and reputation of the operator is crucial, as the operator can impact the value and management of your mineral rights. Here are some factors to research about the operator: Track record: Investigate the operator's history of success and experience in managing similar properties. Financial stability: Assess the operator's financial health to ensure they have the resources to continue managing the property effectively. Regulatory compliance: Look into any history of regulatory violations, fines, or penalties the operator may have incurred. Reputation within the industry: Seek feedback from other mineral rights owners or industry professionals about the operator's reliability and management practices. Mineral Appraisals To establish an accurate value for the mineral rights, you should consider obtaining a mineral appraisal from a qualified professional. A mineral appraisal will take into account factors such as current and future production, commodity prices, geological factors, and comparable sales in the area. This information can help both buyers and sellers negotiate a fair price for the asset. Conducting thorough due diligence before buying or selling mineral rights is crucial for protecting your interests and avoiding potential legal disputes. By engaging in a comprehensive title examination, identifying and addressing title defects, and seeking the help of qualified professionals, buyers and sellers can navigate the complexities of mineral rights transactions with confidence. At Bradley & Hammond Attorneys at Law , we understand that each case is unique, and we are committed to providing personalized legal guidance tailored to your specific circumstances. Our experienced team is well-versed in business law, real estate, estate planning, probate, and oil and gas law, and we are ready to help you navigate the complexities of your mineral rights. Contact us today or call 412-533-2620 (PA) or 817-645-3993 (TX) to schedule a consultation and discuss your options.

When it comes to holding mineral rights, there are several vehicles to consider for effective asset management and protection. Two common choices are Limited Liability Companies (LLCs) and Trusts. In this blog post, we will examine the pros and cons of each, providing you with valuable insights to make an informed decision for your unique situation. As always, we at Bradley & Hammond Law Firm are here to help you navigate the complexities of mineral ownership and management. Limited Liability Companies (LLCs) An LLC, or Limited Liability Company, is a legal business structure that combines the benefits of both corporations and partnerships. It offers limited liability protection to its members (owners), meaning their personal assets are generally shielded from the business's debts and liabilities. Additionally, an LLC typically has pass-through taxation, where profits and losses are reported on the members' individual tax returns, avoiding the double taxation that can occur in corporations. This business structure also provides flexibility in management and operations, as it allows members to customize the company's organization and decision-making processes according to their specific needs. Overall, an LLC is a popular choice for entrepreneurs and small business owners seeking a balance between liability protection, tax advantages, and operational flexibility. Here are the pros and cons of using an LLC to hold mineral rights: Pros: Limited Liability Protection. An LLC provides limited liability protection to its members, meaning their personal assets are shielded from the business's liabilities and debts. This is a significant advantage when holding mineral rights, as it can minimize the risk of personal financial loss due to unforeseen circumstances or disputes. Flexibility in Management. LLCs offer flexibility in terms of management and structure, allowing members to tailor the company to their specific needs. This flexibility can be advantageous when dealing with mineral rights, as it allows for efficient decision-making and ease of operations. Pass-through Taxation. An LLC typically has pass-through taxation, meaning the profits and losses are reported on the members' individual tax returns. This structure can be beneficial as it avoids double taxation, which can occur in other business entities like corporations. Cons: State Fees and Annual Filings. LLCs are subject to state fees and annual filings, which can add to administrative burdens and costs. Public Record. Because LLCs are creatures of the state legislature, all LLC information is generally available in public records, potentially limiting the privacy of the members involved in the mineral rights. Self-employment Tax Considerations . Members of an LLC may be subject to self-employment taxes on their share of the profits, which can increase their overall tax liability. The LLC could elect to be taxed as an S-corp to avoid self-employment taxes, but doing so requires the LLC to follow more strict and complicated tax rules. Trusts A trust is a legal arrangement in which a grantor (also known as a settlor or trustor) transfers assets to a trustee, who then manages these assets for the benefit of one or more beneficiaries. Trusts are established through a written document called a trust agreement, which outlines the terms, conditions, and instructions for the management and distribution of the trust assets. There are various types of trusts, including revocable and irrevocable trusts, each with their own unique features and purposes. Trusts are commonly used for estate planning, asset protection, and tax planning purposes. They can provide privacy, avoid the probate process, and enable long-term control over assets, ensuring that the grantor's wishes are carried out and the beneficiaries' interests are protected. In the context of mineral ownership, it's essential to understand the differences between irrevocable and revocable trusts. An irrevocable trust is a trust that, once established, generally cannot be altered, modified, or terminated by the grantor without court approval or going through a legislatively-authorized decanting process. This inflexibility can offer certain benefits, such as enhanced asset protection from creditors and potential tax advantages. However, it can also be a disadvantage when dealing with mineral rights, where circumstances may change, and adjustments to the trust may become necessary. On the other hand, a revocable trust, also known as a living trust, can be modified or terminated by the grantor during their lifetime. While revocable trusts may not provide the same level of asset protection or tax benefits as irrevocable trusts, they offer greater flexibility in managing mineral rights and adapting to changing circumstances. Ultimately, the choice between an irrevocable and revocable trust for mineral ownership will depend on factors such as the grantor's goals, risk tolerance, and the need for control over the assets. Here are some pros and cons of holding your mineral rights in a trust: Pros: Potential Tax Advantages. Trusts can offer tax advantages, particularly in the estate planning context when transferring wealth to beneficiaries. These benefits may reduce the overall tax burden associated with mineral rights. Privacy. Trusts provide privacy for the grantor and beneficiaries, as they are generally not part of the public record. They are a contractual arrangement, rather than a creature of state legislatures like an LLC. This can be particularly advantageous when holding valuable assets like mineral rights. Avoids Probate. Assets held in a trust avoid the probate process, potentially saving time and expenses for beneficiaries. Mineral rights held personally or in an LLC, by contrast, must go through probate to pass to the next generation. Long-term Control. Trusts allow the grantor to maintain long-term control over assets, including mineral rights, and can provide specific instructions for their management and distribution. The trust itself, depending on how it is written, will often survive the death of the grantor. Cons: Irrevocability (in some cases). Some trusts, particularly irrevocable trusts, cannot be easily modified or terminated once established. This lack of flexibility can be a disadvantage when dealing with assets like mineral rights, where circumstances may change over time. Before setting up a trust, you should carefully evaluate whether an irrevocable trust or a revocable trust is right for your circumstances and goals. More Complex to Establish. Trusts can be more complex and time-consuming to establish compared to LLCs or simply holding the minerals individually, which may result in higher legal fees and additional planning. Trustee Fees. Trusts require the appointment of a trustee to manage the assets, and if the trust allows the trustee to collect management fees, those fees can add to the overall cost of maintaining the trust. Keep it simple: hold the minerals in your own name While LLCs and Trusts are common vehicles for holding mineral rights, another option is to hold these rights in your individual name. Below, we discuss the pros and cons of holding mineral rights in your name to help you better understand this option. Pros: Simplicity. Holding mineral rights in your individual name is the most straightforward option. There is no need to create a separate legal entity or trust, which can save time and legal fees. Direct Control. By owning mineral rights in your name, you retain direct control over the assets and their management. This allows you to make decisions without consulting other members, trustees, or managers. Easier Tax Reporting. As the sole owner of the mineral rights, you report any income, deductions, and credits related to the assets on your personal tax return. This approach can simplify tax reporting compared to managing an LLC or Trust. Cons: Lack of Asset Protection. Holding mineral rights in your individual name exposes your personal assets to potential liabilities associated with the mineral rights. This risk is significantly higher compared to holding assets through an LLC or Trust, which provides a degree of liability protection. Limited Estate Planning Options: When mineral rights are held in your individual name, they become part of your probate estate upon your death. This may result in a more complicated and time-consuming probate process for your beneficiaries. Trusts, in particular, can provide more efficient estate planning options. Ultimately, the decision to hold mineral rights in your individual name, an LLC, or a Trust will depend on your specific circumstances and goals. At Bradley & Hammond Attorneys at Law, we understand that each case is unique, and we are committed to providing personalized legal guidance tailored to your specific circumstances. Our experienced team is well-versed in business law, real estate, estate planning, probate, and oil and gas law, and we are ready to help you navigate the complexities of your mineral rights. Contact us today or call 412-533-2620 (PA) or 817-645-3993 (TX) to schedule a consultation and discuss your options.

Trademarks play a crucial role in protecting a business's identity, reputation, and brand. One way to leverage the value of a trademark is through licensing agreements, which can offer various benefits, such as sponsorships, joint marketing, and tax advantages. This blog post will explore trademark licensing, its importance, and key terms to consider, as well as situations where licensing agreements make sense for your business. What is a Trademark? A trademark is a distinctive symbol, logo, word, or phrase that identifies and distinguishes a company's products or services from those of other businesses. Trademarks help customers recognize the source and quality of goods or services, making them an essential aspect of branding and building consumer trust. What is a Trademark License Agreement? A trademark license agreement is a legal contract between a trademark owner (licensor) and another party (licensee) that grants the licensee the right to use the trademark for specific purposes under certain conditions. This agreement enables businesses to expand their brand reach, generate revenue, and collaborate with other entities without giving up ownership of their intellectual property. The Importance of a Trademark License Agreement Trademark licensing offers several advantages: Sponsorships and joint marketing: Licensing allows businesses to collaborate with other companies, fostering mutual growth and exposure through sponsorships or joint marketing efforts. Revenue generation: Licensors can earn royalties from licensees for the use of their trademark, creating an additional income stream. Tax benefits: Owning the trademark in an IP holding company and licensing it to your own business can provide tax advantages, such as lower tax rates or favorable deductions, depending on the jurisdiction. Brand expansion: Licensing agreements enable businesses to enter new markets and reach a wider audience without the need for significant investment or infrastructure development. Quality control: Licensors can set standards for the quality of goods and services associated with their trademark, ensuring that their brand reputation remains intact. Key Terms to Include in a Trademark License Agreement A well-drafted trademark license agreement is essential for ensuring a successful collaboration and safeguarding intellectual property rights. Key terms to include in such an agreement are the scope of the license, which should clearly define the specific rights granted to the licensee, including the products or services they can offer and the geographic territory in which they can operate. Additionally, the agreement should outline the financial terms, such as the royalty rate, payment schedule, and any additional fees associated with the license. It is also crucial to specify in the agreement any quality control standards that the licensee must adhere to when using the trademark (the mark should always be legible, displayed in a certain size, etc.), as well as any monitoring or reporting requirements. The agreement should have a definitive term, and establish conditions under which either party can terminate the license. The agreement should also clarify that the licensor retains ownership of the trademark and that the licensee has no rights to modify, transfer, or sublicense the trademark without the licensor's permission. It should also address each party's responsibility for legal claims or damages that may arise from their respective actions or omissions, which state's law governs the instrument, and, if you feel so inclined, breach and alternative dispute resolution provisions. Situations Where Licensing Agreements Make Sense Licensing agreements make sense in various situations, such as sponsorships, where businesses can increase brand visibility and reach a broader audience by sponsoring events, teams, or organizations. They also facilitate joint marketing efforts between businesses, enabling them to pool resources, share costs, and leverage each other's expertise for mutual benefit. Franchise businesses often rely on licensing agreements to grant franchisees the right to use the franchisor's trademark, business model, and proprietary information, which enables the brand to expand into new markets. Furthermore, licensing agreements can foster collaborations between businesses to develop and market new products or services, combining their respective strengths and expertise. In addition to public facing situations, owning the trademark in an IP holding company and licensing it to your own business can yield tax advantages, depending on the jurisdiction. For instance, with a licensing agreement between your own IP holding company and your own business, your business can pay royalties to your IP company for use of the trademark, creating income to the IP holding company that may be in a lower tax bracket, while creating a royalty deduction for the business, lowering its taxable income. Not only that, but by holding your trademark in a separate IP company, you can protect it from any claims against your business. In summary, a well-drafted trademark license agreement is critical to protect intellectual property rights, ensure a successful collaboration, and address potential legal claims or damages. By considering the various situations in which licensing agreements make sense, businesses can maximize their brand visibility, achieve tax and asset protection advantages, and foster strategic partnerships for mutual growth and success. Bradley & Hammond Law Firm offers comprehensive and customized legal solutions for businesses of all sizes, including trademark registration and licensing. Our primary focus is to alleviate our clients' legal concerns, empower them to achieve their business aspirations, and effectively manage legal risks. Do you have questions about trademark registration and licensing? Contact us or call 412-533-2620 (PA) or 817-645-3993 (TX) to schedule a consultation.

When most people think of intellectual property, they think of patents and copyrights, inventions, books, and music. Y our B2B business’ brand identity – its name, phrases, symbols, logos, and designs -- is also intellectual property entitled to certain protections under federal and state law. Protecting and leveraging your business' intellectual property is important, and adds value to your company and needs protection from copycats. One of the most effective ways to protect your brand is by registering your brand’s name, phrase, symbol, logo, or design -- your mark -- as a trademark with the US Patent and Trademark Office (USPTO). In this article, we’ll explore what federal trademark registration is, what benefits it offers, and give a high-level overview of the registration process. What is Federal Trademark Registration? Federal trademark registration is the process of registering a trademark with the USPTO. A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of a product or service from those of others. By registering your trademark with the USPTO, you gain nationwide protection and legal rights to use your mark in commerce. Owning a federally-protected trademark has benefits: Legal protection: Registration provides enforcement rights and protection against trademark infringement. In case of infringement, once your trademark is registered, you can take legal action to protect your brand and seek damages. National coverage: Registration with the USPTO grants nationwide protection, allowing you to expand your business and sell your products or services in other states. While you can also register trademarks with individual states, federal trademark registration has the broadest reach. Exclusive rights: Registration gives you exclusive rights to use the mark in connection with your goods or services. Once registered, you have the legal right to prevent others from using a similar mark that may cause confusion or dilute your brand. Deterrent: Registration deters others from using a similar mark. Once registered, your trademark will be listed on the USPTO database, making it easy for others to search and avoid using a similar mark. Filing a successful trademark application for a B2B business takes time, research, and careful planning. Very broadly, here are the steps to follow: Step 1: Conduct a Trademark Search Before you apply for federal trademark registration, you need to conduct a comprehensive search to ensure that your proposed mark is available for registration. You should do this at the same time you register your LLC or business with the state. Conducting a search can help you identify potential conflicts and avoid costly legal battles and re-brands. You can perform a search on the USPTO website or hire a trademark attorney to conduct a search for you. Want to see if your top name is available before committing? Ask a trademark attorney to run a knock-out search to eliminate obvious non-starters. Step 2: Choose a Strong Mark To increase your chances of getting your trademark approved, it’s important to choose a strong mark. A strong mark is unique, memorable, and not descriptive of the goods or services you provide. Avoid using generic or descriptive terms that can’t be trademarked. A strong mark can be arbitrary, fanciful, or suggestive of your brand. After running a comprehensive trademark search, your trademark attorney will issue an opinion letter that flags any issues with the mark you intend to use and any marks similar to it in your industry. Step 3: File Your Trademark Registration Application While you can file the application yourself, it is highly recommended to hire a trademark attorney to guide you through the process. He or she will know strategies for filing that are more likely to get your mark registered. Once the application is filed, it will take some time for the USPTO to review the application, issue any office actions (objections or questions), and finally approve or reject your application. As of the writing of this article in 2023, it can take more than a year for the USPTO to process an application. Step 4: Maintain your registration status Once your application is approved (congratulations!), you will need to use your mark in commerce to maintain its registration. If you don’t use your mark for a consecutive three (3) years, it can be considered abandoned and lose legal protection, although exceptions can apply. Use your mark on your products or services, advertising, and other branding materials to establish your brand identity and maintain your trademark registration. Additionally, a Declaration of Use and Application for Renewal must be filed every 10 years after registration. Step 5: Monitor Your Trademark Once you’ve registered your trademark, you will need to monitor its use and enforce your rights against others who copycat. Regularly monitor the market and the USPTO database to ensure that no one is infringing on your trademark. If you find any unauthorized use of your mark, take legal action to protect your brand and seek damages. Your trademark attorney can help you with monitoring and protecting your trademarks. In short, federal trademark registration is a crucial step in protecting your intellectual property and establishing your brand identity. As a B2B business owner, it’s important to conduct a comprehensive search, choose a strong mark, use your mark so its registration doesn't expire, and monitor your trademark to ensure legal protection and prevent trademark infringement. Don’t forget that trademarks, and intellectual property law in general, is complicated. Relying on a trademark attorney to guide you through the process can save you time and money in the long run. It's best not to DIY something outside of your expertise. A story to illustrate this point: Imagine you decided to DIY your trucking business' trademark application. You picked a generic name for your brand, and because you are a veteran, used the US Airforce insignia in your branding. You wanted to save money, so you decided not to do a trademark search, or maybe you did a search but the USPTO's free search database, TESS, came back with no direct matches when you looked. You filed your application and waited a year to hear from an examiner, just to have your application rejected because the name is generic (first problem) and it infringes on existing trademark rights -- rights belonging to the US Airforce (second problem). Here's the real issue though: while you were waiting for your application to be reviewed, you used your mark to form your business entity, put it on all of your contracts, marketing materials, websites, vehicles, building signage, and so on. Because your mark infringes on the rights of another, you will need to re-do all of your branding, including your business name. How will your customers handle a business name change? Will they know who you are? And all of that re-branding costs your business time and money. Risks like the ones described above can be avoided by using a trademark attorney to help you pick a strong mark, run thorough searches, and advise you on risk of rejection prior to filing your application. The Attorneys at Bradley & Hammond Attorneys at Law help B2B business owners with federal trademark searches, applications, office action responses, enforcement, and monitoring. Want to grow your business and protect your intellectual property? Schedule a consultation by calling (412) 533-2620 (PA) or (817) 645-3993 (TX), or contact us online.

Are you considering buying or selling mineral rights? Whether you're a mineral buyer or seller, it's important to understand the transaction and the key terms and conditions in the transaction documents. The process for buying or selling mineral rights can be complex, and it's essential to have a good understanding of the steps involved in the transaction process. The Mineral Purchase Transaction The mineral purchase process typically starts with an offer from the buyer to the seller. This offer will typically include a purchase price and other terms that the buyer is willing to agree to as set forth in a written offer. If the seller accepts the offer, the parties will then enter into an agreement of sale. This agreement will typically include a description of the mineral rights being sold, the purchase price, and other key terms (we will discuss those terms in more detail below). Once an agreement of sale has been reached, the buyer will usually be entitled to perform due diligence to ensure that the mineral rights are free from defects and encumbrances which affect the marketability of title. Due diligence usually involves obtaining a title abstract dating back over 100 years (depending on where the assets are located) and a review of title and any liens affecting the interest. Sometimes the mineral buyer will obtain a title opinion from an oil and gas title attorney during this time frame to advise on the marketability of title and any curative required to clear title prior to purchase. If any issues are discovered during due diligence, the parties may need to perform title curative to resolve them. Curative can include anything from opening probate estates, filing affidavits of heirship and corrective deeds, to filing lawsuits and obtaining releases from prior owners or lienholders. Once due diligence and curative is complete, the parties will move on to the closing phase. At this point, the buyer will typically provide payment to the seller, and the seller will transfer the mineral rights to the buyer. This may involve the execution of a deed, assignment, or other legal documents to effectuate the transfer of ownership. A mineral deed is most common. Key Terms to Consider in a Mineral Purchase or Sale When entering into a mineral purchase and sale agreement, it's important to consider several key terms and conditions, including: Purchase price: The most critical term for both the buyer and the seller is the purchase price. This includes the amount, currency, and payment terms, as well as any adjustments that may be made based issues identified during due diligence. Due diligence period and curative period: The purchase agreement should define how much time the buyer has to review title, the scope of the review, and time available for curative if defects are discovered. These provisions should also discuss which party is responsible for doing curative, who will pay for it, and what rights the parties have if title is less than marketable. For instance, does it allow for the contract to be terminated by the buyer without doing curative, or does the buyer need to provide the seller a certain amount of time to cure before the deal terminates? Closing: The purchase agreement should detail when and where closing will take place. Representations and warranties: Mineral sellers need to provide accurate and comprehensive representations and warranties regarding the ownership and status of their minerals, and mineral buyers need to be assured that they are buying clear title from a party with the authority to convey it. This is where representations and warranties come into play. You should review your agreement, or better yet -- have your oil and gas attorney review your agreement -- to ensure that the reps and warranties are not overly broad or too narrow for your situation. Covenants and conditions: Mineral buyers and sellers may also need to make and fulfill certain covenants and conditions before the closing date, such as obtaining necessary consents and approvals or providing access to relevant documentation and information, such as corporate resolutions, certificates of trust, and other documentation to prove their authority to transact. Indemnification and liability: Mineral buyers and sellers need to consider the indemnification and liability provisions in the purchase agreement. These provisions include the parties' respective obligations to indemnify the other for any losses arising from breaches of representations and warranties, as well as liability for other claims, such as breach of contract or failure to convey clear title. Buying or selling mineral rights can be a complex process. It's an important decision that can have significant financial benefits and risk. Whether you're a mineral buyer or seller, it's important to work with an experienced oil and gas attorney to ensure that your interests are protected, and that the transaction serves your needs and goals. If you are buying or selling minerals, we are here to help. Contact us today or call (817) 645-3993 (Texas) or (412) 533-2620 (PA) to schedule a consultation with one of our oil and gas attorneys.