Unsworn Declarations – Avoiding the requirement of a Notary in Texas

 

The Eighty Second Texas Legislature issued a statute that allows and unsworn declaration instead of a sworn declaration …. or affidavit when required by statute, rule, order, or legal requirement.

What is require is that the declaration be in writing, subscribed by the person making the declaration as true under penalty of perjury.
(d) Except as provided by Subsections (e) and (f), an unsworn declaration made under this section must include a jurat in substantially the following form:

(b) This section does not apply to a lien required to be filed with a county clerk, an instrument concerning real or personal property required to be filed with a county clerk, or an oath of office or an oath required to be taken before a specified official other than a notary public.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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CIVIL PRACTICE AND REMEDIES CODE

TITLE 6. MISCELLANEOUS PROVISIONS

CHAPTER 132. UNSWORN DECLARATIONS

Sec. 132.001. UNSWORN DECLARATION. (a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.
(b) This section does not apply to a lien required to be filed with a county clerk, an instrument concerning real or personal property required to be filed with a county clerk, or an oath of office or an oath required to be taken before a specified official other than a notary public.
(c) An unsworn declaration made under this section must be:
(1) in writing; and
(2) subscribed by the person making the declaration as true under penalty of perjury.
(d) Except as provided by Subsections (e) and (f), an unsworn declaration made under this section must include a jurat in substantially the following form:
“My name is __________ _________ ____________, my
(First) (Middle) (Last)
date of birth is _________________, and my address is
_____________, ____________, _________, ____________,
(Street) (City) (State) (Zip Code)
and __________________. I declare under penalty of
(Country)
perjury that the foregoing is true and correct.
Executed in _______ County, State of ________, on the ________ day of ________, ________.
(Month) (Year)
____________________
Declarant”
(e) An unsworn declaration made under this section by an inmate must include a jurat in substantially the following form:
“My name is __________ _________ ____________, my
(First) (Middle) (Last)
date of birth is _____________________, and my inmate
identifying number, if any, is __________________. I
am presently incarcerated in ________________________
(Corrections unit name)
in _____________, _________, _______, ____________. I
(City) (County) (State) (Zip Code)
declare under penalty of perjury that the foregoing is true and correct.
Executed on the _____ day of ________, _______.
(Month) (Year)
____________________
Declarant”
(f) An unsworn declaration made under this section by an employee of a state agency or a political subdivision in the performance of the employee’s job duties, must include a jurat in substantially the following form:
“My name is __________ _________ ____________, my
(First) (Middle) (Last)
and I am an employee of the following governmental agency: __________________. I am executing this declaration as part of my assigned duties and responsibilities. I declare under penalty of perjury that the foregoing is true and correct.
Executed in _____________ County, State of _________, on the _____ day of ________, _______.
(Month) (Year)
____________________
Declarant”

Added by Acts 1987, 70th Leg., ch. 1049, Sec. 60, eff. Sept. 1, 1987.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.011, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 847 (H.B. 3674), Sec. 1, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 515 (S.B. 251), Sec. 1, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 946 (H.B. 1728), Sec. 1, eff. June 14, 2013.

Real Property Gifts

 

I recently received another call from a lady that wanted to “add her son’s name” to the deed, thinking that this would provide some benefit.  Therefore, I had to pull out my comments from an old post,  review and repost them.  The advice still stands:  A method that is NOT a solution to this scenario (below)  is to “Add [someone’s name] to the title”. This solves nothing and brings in additional problems.  We use other procedures and documents.

Often, in a San Antonio practice, we have people call in and ask to transfer a property from a parent to the child, children, or grandchildren. Of course there are other variations within the family, perhaps from an aunt to a niece, or from an adult child to a parent that needs a small home for retirement.
These could be sales from one family member to another, but are often made as “gifts”. There are a few considerations that we commonly make. This attorney has a few practices and preferences, but of course, the final decisions are left up to the client, so long as honesty is involved and nobody is misinformed as to the duties, responsibilities, and results.

The word “clients” brings up the first question. Who is the client?, the donor, the donee, or even a spouse of one of those parties. My preference would be to have the donor as the client, especially in a “gift” situation. If the parties contact me together, I can have joint representation, so long as there is a written agreement disclosing any conflicts. However, sometimes we represent solely the grantee, but whatever representation we use, it must be made clear to all parties.
Transfers of property are generally done by “Special” Warranty Deed, which assures that the grantor has or warrants title is good, so long as he/she had it, but does not ensure that the title had no defects when it was received by the grantor. This would be appropriate for a “gift” situation, not a purchase, which would require a “General” Warranty Deed.
We would have the same considerations as to condition of the property. In a gift, I would expect that the donee would take the property “as is”, but the matter should be discussed and documented.
Thirdly, title reports and insurance are usually not called for in the case of a gift, but that point should be reviewed as well.
I don’t like the situation where property in which an elderly person lives is transferred to a younger family member (“to avoid probate”), and then the younger person sells the property or otherwise evicts grandma. I don’t think we’ve had that situation on transfers in our office, but that is why I like to consider that the grantor retain a “life estate”. This allows the grantor to reside in the property so long as they live, and even move out and rent it out for additional income. Then, at the time that they pass away, the life estate terminates, and full title is good in the grantor.
In analyzing the possibility of death, the parties should also review the possibilities and eventualities in the life of the grantee, and whether that makes any difference in the gift. Transferring property off, and then forgetting about the possibilities of the other person, much less predicting and controlling them, is just fine with me. However, one should understand the contingencies of death of the grantee, or bankruptcy, marriage, and/or divorce, and should either make provisions, or be resigned to not regret the transfer. These deeds are irreversible and irrevocable.
Now, does the “gift” create a tax issue? Under the Internal Revenue Code, a gift (unless exempt) creates a tax liability for the DONOR, the one who gives the property. Now, settle down, because under current law, amounts up to about Five Million Dollars are not taxable. Even previous laws held this exemption up at a Million Dollars or so. Therefore, most of these homes that are being given between families do not reach the exemption amount. Below that, there is an “exclusion” amount, and gifts below that amount do not require any tax return or consideration at all. The exclusion amount is $14,000 per year, can be doubled by spouses, and can be used once annually for each donee. In other words, transferring a property worth $52000 or less could be handled by each spouse giving $14000 of the value to two donees.
Another way to use the $14000 exclusion is to a.) give a percentage of the property to the donee every year (like 20% of a $65000 property every year), or b.) give the annual exclusion for this year, with donee signing an owner carried mortgage for the difference, and then donating or forgiving a reduction in the balance every year, that is equal to the $14000 exclusion.
This does not mean that amounts over $14000 are taxable. They are covered by the donor’s lifetime exemption (up to $5+ mil, remember), but legally require a gift tax return filing, Form 706.

Revising this post for 2017: For 2017, the estate and gift tax exemption is $5.49 million per individual, up from $5.45 million in 2016. That means an individual can leave $5.49 million to heirs and pay no federal estate or gift tax. A married couple will be able to shield just shy of $11 million ($10.98 million) from federal estate and gift taxes. The annual gift exclusion remains at $14,000 for 2017.  per Forbes

Now, ad valorem taxes are a different consideration and the effects need to be contemplated as well. “Ad Valorem” taxes are the local real property taxes assessed by the County, the City, and/or the school district, as well as various other entities. A property owned by an elderly person may have tax reductions and protections that would not continue when transferred to a younger person. Also, if the new “owner” is not a resident of the property, they will not be able to declare it a “homestead” and apply for a tax reduction given to those types of properties.
Lastly, donors should consider Medicaid issues, as to whether a later need for Medicaid services will be denied because of the disposition of the property, but that is a large, complicated matter meant for another column.
David Bosworth
Attorney
San Antonio
210-805-9882

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Service of Citation Notice When Filing an Application for Issuance of Letters of Administration

Recently I was called on to assist an heir in recovering property she had inherited after the passing of her mother and father.  Filing to application for appointment of a personal representative (administrator) caused me to review the required Service of Citation or Notice in a probate case like this.

The statute controlling this is CHAPTER 303. CITATIONS AND NOTICES IN GENERAL ON OPENING OF ADMINISTRATION (full text below).

The required notice is done by posting of the Application by the Sheriff.  The fee for this is collected, and the process is initiated by the Probate Clerk when the Application is filed.

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Full Text:

CHAPTER 303. CITATIONS AND NOTICES IN GENERAL ON OPENING OF ADMINISTRATION

Sec. 303.001. CITATION ON APPLICATION FOR ISSUANCE OF LETTERS OF ADMINISTRATION. (a) On the filing with the clerk of an application for letters of administration, the clerk shall issue a citation to all parties interested in the estate.
(b) The citation required by Subsection (a) shall be served by posting and must state:
(1) that the application has been filed;
(2) the nature of the application;
(3) the decedent’s name;
(4) the applicant’s name;
(5) the time when the court will act on the application; and
(6) that any person interested in the estate may appear at the time stated in the citation to contest the application.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Sec. 303.002. COURT ACTION PROHIBITED BEFORE SERVICE OF CITATION. A court may not act on an application for the issuance of letters of administration until service of citation has been made in the manner provided by this chapter.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Sec. 303.003. SERVICE BY PUBLICATION OR OTHER SUBSTITUTED SERVICE. Notwithstanding any other provision of this chapter, if an attempt to make service under this chapter is unsuccessful, service may be made in the manner provided by Rule 109 or 109a, Texas Rules of Civil Procedure, for the service of a citation on a party by publication or other substituted service.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

New Year, New Web Image, More Information

This post celebrates both a new year (2017) and a New Web Design.  I’m proud of my old favorites, the basic page I used since about 1998, and the newer layout from about 2005, but demands of mobile devices, and the availability of WordPress design has pushed us into the new millennium, second decade.

 

 

Best Bankruptcy Attorneys in San Antonio

You may ask, how do I find the best bankruptcy attorney for my foreclosure defense, debt relief, etc, near me?

My  suggestion is to look at the ones that are in Bankruptcy Court every day, doing motions to modify, defending lift stays, Chapter 13 confirmations, obtaining cash collateral for their clients.

Where do we find the best,  most active attorneys? Look in the docket calendar for the bankruptcy courts.

Upcoming bankruptcy dockets can be found at http://www2.txwb.uscourts.gov/calendar/calendar_index.htm

Let’s look at one of the larger dockets of the last year, January 28, 2016 in Judge Gargotta’s Court.

Which attorneys had the most cases?

J. Todd Malaise 387
Joris Robert vanhemelrijck 79

Heidi Mcleod 47

Rick Flume 24

Raymond J Vale Jr 7

Madgalena Gonzales 20

Ricardo Ojeda Jr 11

Lewis E. Buttles 10
John L. Sanders Sr 5
Ruben E. Vasquez 48
Morris Joseph Kirschberg 4

source: Attorney David Bosworth
www.mysanantoniolawyer.com

 

 

 

Legal Work in Courthouses, South Texas and Central Texas

A client recently called, stating that he was having to do a foreclosure on a property/business that was sold by him several years ago. The purchaser was paying on a Note, secured by the real estate used by the business. This sale closed at my office on Broadway, but dealt with real estate that was located several counties away from Bexar and San Antonio. He said that he had hired local counsel in that county, which was fine with me, because I’m not really that enamored of having to show up at a Justice of the Peace hearing, at 8 or 9 am at a location an hour and a half from my office. It would be worse, of course, to have resets, judicial cancellations, appeals to the county court, which are all normal activities in this kind of case.

But don’t get me wrong; as I review 25+ years of practice in South and Central Texas, I have to say that I enjoy the trips to several of the surrounding counties. Going to a neighboring county usually means a short drive in the country, parking right outside the courthouse, and visiting with judges, clerk personnel, attorneys that practice in those counties, and usually some attorneys that are also commuting from San Antonio, handling their particular client’s interests.

This certainly counts for most of the adjoining counties, and their county seats. Medina/Hondo, Kendall/Boerne, Comal/New Braunfels, Guadalupe/Seguin, and even Wilson/Floresville. I would include Bandera/Bandera as well, just a quick trip up Highway 16 to the middle of that cowboy town. OK, I’ve left out Atascosa, because the courthouse there is in Jourdanton, which is one more leg on the trip, after passing Pleasanton or Poteet. However, once there, I see the same grouping of people, including one attorney from San Antonio, who makes a good living defending criminal cases in that county, and the judge that is still there, who I met as we represented clients in a divorce case, shortly before she was elected to the bench.

The law regarding real estate, bankruptcy, contracts, estates and probate is essentially the same throughout all Texas counties, and I enjoy visiting throughout the State. So give me a call at 210-805-9334 or 210-805-9882 with your comments and questions.

David Bosworth
www.mysanantoniolawyer.com

Member: www.law210.com

Member, State Bar of Texas

Motions to Extend the Stay in a Chapter 13 Bankruptcy Case Refiling

Motions to Extend the Stay

If you have a previous bankruptcy filing that was PENDING within the prior calendar year, then your second, current case will stop creditors (“stay” the creditor’s actions) for only a period of 30 days, allowing for a noticed hearing before the court. The debtor needs to show a change in financial and/or personal circumstances such that the Court is convinced that debtor will be able to complete the current Chapter 13 Plan.

Your attorney will have to file a motion, and then will have to file for an EXPEDITED hearing on that motion, because, in the usual course of things in most Bankruptcy Court jurisdictions, the hearing would not come up, UNLESS EXPEDITED, soon enough to keep the Stay from lapsing after 30 days.

Contact your attorney for further explanation, and assistance with a Motion to Extend Stay.

mysanantoniolawyer.com

David A. Bosworth
Bankruptcy Attorney
San Antonio, TX

210-805-9334