As I type this, I'm sitting on the judge's bench waiting for a jury trial to begin. The defendant is an attorney of my acquaintance who has his own attorney (so, not a fool). The jury panel consists of 20 or so people who are waiting patiently for me to begin, unlike the last time we attempted to try this case, when only 6 people showed up for jury duty. I'm glad of that, because otherwise, I would have had to send the police out to round up a "pickup jury" - which, as the name implies, consists of currently available hapless citizens of the municipality - which is never a fun process.
The prosecutor in this court is a judge in another jurisdiction. He's also my backup prosecutor in a court where I'm the primary prosecutor. I'm the backup judge in another jurisdiction for the judge in the court where I'm the primary prosecutor. Confused? Don't be. This is an issue of jurisdiction. Each city is its own judicial jurisdiction, which means that I can be a prosecutor in one city, a judge in another and a defense counsel in a third without running afoul of the conflict of interest provisions of our Texas Disciplinary Rules of Professional Conduct. It's a question of hats: I can deal with another attorney where I'm the prosecutor and he or she is the defense counsel, and deal with that same attorney where I'm the defense counsel and the other attorney is the judge.
There are those who would say there is no way one person can deal with another in two different relationships, that there must be some favoritism or bias that keeps these relationships from being ethical. I've been a prosecutor for 32 years, a defense counsel for 29 years and a judge for 13 years. In all that time, I've only been approached one time to give a defendant a break because of a relationship I had with his attorney. My word is a precious thing, as it should be for every lawyer. Those who try to turn relationships to unfair advantage are the exception rather than the rule. And a reputation, once sullied, is hard to retrieve.
We do a lot of probate at the Jacobson Law Firm, and I see a common misperception when it comes to real estate: the kids will come in to probate Dad's will,and they've agreed to sell the house and split the proceeds; however, as we get deeper into our discussions, it turns out that nobody probated Mom's will when she died 6 years ago. When I ask why, the answer is invariably, "All of their property was community property so Dad didn't need to probate the will. Besides, Dad had the appraisal district change the house into his name alone, so that should be enough."
There are two problems with this logic. The first is this: when it's time to sell the old homestead, the title company likely won't issue a policy until Mom's will has been probated, because there's no record that Dad inherited her half of the house. If there's no title insurance policy, the value of the house goes way down because the buyer can't be sure he or she is buying all of everybody's interest in the house. Another concern is that here in Texas, a will has to be probated within four years of the person's death; however, there are a couple of ways to clear the title even after four years have passed. It just prolongs the time it takes to complete the probate of Dad's estate, sell the house and split the money.
The second problem is that the folks at the county appraisal district don't give a rip who owns the property, they just want to have somebody on the hook to pay the taxes. They'll change the name and address of the person responsible for the taxes pretty much whenever they're asked to, but that's not an official change of title. In order to pass clear title to real estate, the deed records have to reflect the changes in ownership, by filing one of the following:
As always, the above is legal information, not legal advice, and since I'm a Texas lawyer, it's based on Texas law. As many of you know, my father passed away last October. My mom is fortunate that her son practices probate law and knows probate lawyers. Children of a surviving parent can do that parent a great service by suggesting a visit to a law firm that practices a lot of probate, for a review and recommendations on how to get that brand new widow or widower through a difficult time with one less worry.
Musings, observations, the occasional whineage and some funny stuff.