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Jim Ed "Jed" Franklin

  • Energy, Oil & Gas Law, Business Law, Probate...
  • Colorado, North Dakota, Texas
Claimed Lawyer ProfileQ&A
Practice Areas
  • Energy, Oil & Gas Law
  • Business Law
  • Probate
  • Real Estate Law
  • Free Consultation
    Free thirty minute in-person or phone consultation.
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Jurisdictions Admitted to Practice
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North Dakota
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SMU Dedman School of Law
J.D. (2005)
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Trinity University
B.A. (2002) | Economics
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Legal Answers
13 Questions Answered

Q. Hello, my father passed intestate. My sister and I are only heirs. Colorado probate. Question about asset division.
A: There is not a particular form that I am aware of to outline an agreement of a division of assets. What you need is a brief agreement with your sister about the property division. It would say how it was distributed, that you are both OK with that, and a release of claims against both of you.
Q. Dispute with HOA over our mineral rights.They are claim ownership rights.We say we own but give HOA POA.Who is correct.
A: There is a lot to this question. The first is whether the lot owners were given the minerals to begin with. If so, then the question is whether this covenant applies to each lot. It probably does. Then, what does this covenant mean. This covenant allows the HOA to execute leases for each lot owner. This is probably to control development in the subdivision. What isn't clear is who gets the bonus for signing the lease and who gets the royalties. It would appear that the lot owners get that money but the HOA negotiates the lease. An attorney would need to see the deed, the declaration of covenants, and probably the HOA bylaws to answer this question in full. If there is a lease on the property, then that should be examined, too. But it sounds like there is a lease negotiation in progress or production is occurring and you are trying to figure out your rights. I suggest contacting a local oil and gas attorney to determine if you are entitled to the royalties.
Q. My mother died and I need to sell her house - does probate have to be finished before I can do this?
A: Probate does not have to be finished in order to sell property of the deceased. However, the seller must have authority; this person is usually the personal representative/executor. The personal representative distributes property and pays off debt. If there is a debt on the house, like a mortgage, it must be satisfied either before the sale, or during the sale from the proceeds. You must also look at the will, if any, to see what authority the executor has to sell property. If there is no will, then the statutes take over. I suggest you retain a lawyer, if you are the personal representative, or if not, then you may need a lawyer to ensure that the proceeds from any sale are distributed correctly. Usually lawyers are useful in any probate that is the least bit complex.
Q. what is/how to get: Letter of successor's interest
A: What you want are Deeds, not a Deed of Trust. A Deed would be in the form of a quitclaim deed or warranty deed. This creates a "chain" of title that you can show the bank. A to B, B to C, C to D. If there are no deeds for the gift, then you are going to have a much tougher time and will definitely need an attorney. If their are deeds, then you should show the bank the chain of title. The deeds of trust won't get you there--you need conveyance documents like a Warranty Deed or Quitclaim Deed.
Q. For informal probate, what documents are required to transfer real estate and savings accounts. Court order required?
A: You should definitely engage a probate lawyer since there is real estate involved. Generally, real estate requires the Letters, which you have. You then distribute the property using a personal representative's deed in accordance with the will, or if no will, Colorado's intestacy laws. There are nuances to this, as the deed must be of a certain date after the Letters are issued; the deed must be very carefully drafted to protect you as PR; and if the real estate was held in joint tenancy there is a different process. As for bank accounts, if there is a beneficiary or payable on death (POD) named on the account, that person gets it without going through probate. If there is not, then it goes through probate and is subject to the will or intestate statutes. Importantly, no probate assets may be distributed until all estate debts are paid. Creditors must have notice, too. A probate attorney can walk you through all of this and make sure it is all done correctly.
Q. My wife inherited mineral rights along with her siblings to property owned by her parents.
A: It depends on what title you have to the mineral rights. Based on what you've written, you are probably co-tenants of an undivided interest in oil, gas, and other minerals. Assuming this, then no, you cannot stop the siblings from leasing, selling, or using their part of the interest. Each co-tenant has the right to develop the land if they want to. So, you may not want to, and you don't have to lease or sell or be any part of the operations, but your siblings might want to. You could consider selling your part of the interest to your siblings so that you get cash for your inheritance but are out of the oil/gas/mining situation. An experienced oil and gas attorney can gather more information from you to inform you of your options and advise you of what to do to accomplish your goals.
Q. Is it possible for me to sell mineral rights to the land under my property but maintain the surface rights above ground?
A: Yes, it is very common to sell the mineral rights under the land and keep the surface. However, as has been pointed out, the minerals take precedence over the surface. If an oil company wants to drill on your surface to access the buyer's minerals, they must reasonably accommodate your surface use, but you can't stop them from drilling. Nevertheless, oil companies usually execute a surface use agreement with the surface owner, but it is not required under the law. Importantly, you can put restrictions on surface use in the mineral deed when you sell. For example, you can restrict drilling to a certain corner of the property, or 1000 feet away from any house or structure. If you are considering selling your minerals, you should speak with an oil and gas attorney to help you evaluate the deal, draft the deed, and ensure you get paid.
Q. Dad died 15 months ago in ND and step mom died this month. no children together. Next of kin is? Her mom is alive but 90
A: Your question is missing some important information, feel free to contact me via email so I can better answer it. But generally, you should have some interest in your father's estate, though it sounds like there is not much in it. If so, then the "spousal share" may eat up all of the estate. The spousal share is what your stepmother gets from your dad's estate. Nevertheless, it is possible that you are entitled to what is in your father's estate. If your stepmother is the personal representative and lacks mental capacity to administer his estate, then you can challenge based on competency. Is your father's estate being probated? Who is the personal representative? Were you legally adopted by the stepmother? Then, assuming the stepmother has no birth children whatsoever, and no will, and you were legally adopted by her, when she passes her estate will go to whomever she legally adopted (it goes to her "descendants"--since she had no birth children, her only descendants would be her adopted children). If she had no adopted children, then it would go to her parents (likely deceased), and if her parents are deceased, it would go to their descendants (i.e., aunts and uncles of your stepmother). Hope this helps, let me know if you need more info. Although I am licensed to practice law in North Dakota, this answer in no way constitutes legal advice and NO ATTORNEY-CLIENT RELATIONSHIP exists between us. If you need legal advice, you should engage an attorney licensed in ND.
Q. My mom and dad owned farm land and my dad passed away August 4, 2015. During my dad's probate we had the land appraised.
A: The obligation of the personal representative of the estate is to determine the fair market value. There is no state requirement for an appraisal. I think that you can feel free to use the appraised value on September 9 to determine fair market value on September 15.
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