Texas Estates Code 305.204 – Lien On Real Property Owned by Personal Sureties
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(a) If a judge finds that the estimated value of personal property of the estate that cannot be deposited, as provided by Subchapter D, is such that personal sureties cannot be accepted without the creation of a specific lien on real property owned by each of the sureties, the judge shall enter an order requiring each surety to:
(1) designate real property that:
(A) is owned by the surety and located in this state;
(B) is subject to execution; and
(C) has a value that exceeds all liens and unpaid taxes by an amount at least equal to the amount of the bond; and
(2) give an adequate legal description of the real property designated under Subdivision (1).
(b) The surety shall incorporate the information required in the order under Subsection (a) in an affidavit. Following approval by the judge, the affidavit shall be attached to and form part of the bond.
Terms Used In Texas Estates Code 305.204
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Affidavit: means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. See Texas Government Code 312.011
- Court: means and includes:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise original probate jurisdiction; and
(3) a district court exercising original probate jurisdiction in a contested matter. See Texas Estates Code 22.007 - Deed: The legal instrument used to transfer title in real property from one person to another.
- Estate: means a decedent's property, as that property:
(1) exists originally and as the property changes in form by sale, reinvestment, or otherwise;
(2) is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent's representative by the trustee of a trust that terminates on the decedent's death, and substitutions for the property; and
(3) is diminished by any decreases in or distributions from the property. See Texas Estates Code 22.012 - Judge: means the presiding judge of any court having original jurisdiction over probate proceedings, regardless of whether the court is:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise probate jurisdiction; or
(3) a district court exercising probate jurisdiction in a contested matter. See Texas Estates Code 22.019 - Lien: A claim against real or personal property in satisfaction of a debt.
- lien: include :
(1) a deed of trust;
(2) a vendor's lien, a mechanic's, materialman's, or laborer's lien, an attachment or garnishment lien, and a federal or state tax lien;
(3) a chattel mortgage;
(4) a judgment; and
(5) a pledge by hypothecation. See Texas Estates Code 22.024 - Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- personal representative: include :
(1) an executor and independent executor;
(2) an administrator, independent administrator, and temporary administrator; and
(3) a successor to an executor or administrator listed in Subdivision (1) or (2). See Texas Estates Code 22.031 - Property: means real and personal property. See Texas Government Code 311.005
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Real property: includes estates and interests in land, whether corporeal or incorporeal or legal or equitable. See Texas Estates Code 22.030
- Signed: includes any symbol executed or adopted by a person with present intention to authenticate a writing. See Texas Government Code 311.005
- Surety: includes a personal surety and a corporate surety. See Texas Estates Code 22.032
(c) A lien arises as security for the performance of the obligation of the bond only on the real property designated in the affidavit.
(d) Before letters testamentary or of administration are issued to the personal representative whose bond includes an affidavit under this section, the court clerk shall mail a statement to the office of the county clerk of each county in which any real property designated in the affidavit is located. The statement must be signed by the court clerk and include:
(1) a sufficient description of the real property located in that county;
(2) the names of the principal and sureties on the bond;
(3) the amount of the bond; and
(4) the name of the estate and court in which the bond is given.
(e) Each county clerk who receives a statement required by Subsection (d) shall record the statement in the county deed records. Each recorded statement shall be indexed in a manner that permits the convenient determination of the existence and character of the liens described in the statements.
(f) The recording and indexing required by Subsection (e) constitutes constructive notice to all persons regarding the existence of the lien on real property located in the county, effective as of the date of the indexing.
(g) If each personal surety subject to a court order under this section does not comply with the order, the judge may require that the bond be signed by:
(1) an authorized corporate surety; or
(2) an authorized corporate surety and at least two personal sureties.