How to handle mineral rights in prior person's name that were never re-titled to decedent?

[Phil Williamson]

Jurisdiction

New Mexico

I'm helping with a probate which has some mineral rights that the decedent owns but are not in her name. They are still in her ex-husband's name (deceased). She was granted the mineral rights in the divorce settlement agreement, but some of the rights were never transferred to her name.

So basically, "Sam" and "Diane" got divorced, Diane was granted all the mineral rights during the divorce as stated in the settlement agreement. A portion of the rights were QC deeded from Sam to Diane after the divorce. Some stayed in Sam's name for unknown reasons. Sam has died. An additional portion of the rights were QC deeded to Diane by Sam's administrator during Sam's probate. Now Diane has died. There are a few mineral rights that are still in Sam's name. How does Diane's estate transfer the mineral rights that are in Sam's name to Diane's heirs? Can Diane's estate do a QC deed to the heirs even though they are in Sam's name? Or does Diane's estate have to first do something like transfer the rights from Sam's name to Diane's estate?

 

[army judge]

How does Diane's estate transfer the mineral rights that are in Sam's name to Diane's heirs? Can Diane's estate do a QC deed to the heirs even though they are in Sam's name? Or does Diane's estate have to first do something like transfer the rights from Sam's name to Diane's estate?

Your questions can best be answered if you retain the services of a real estate attorney in the vicinity where the property is located.

 

[Tax Counsel]

Can Diane's estate do a QC deed to the heirs even though they are in Sam's name? Or does Diane's estate have to first do something like transfer the rights from Sam's name to Diane's estate?

The estate can do that, but whether it will do any good depends on whether Diane's estate has the rights to what is being transferred by the deed. The best thing would be for Sam's estate to transfer the rest of the rights it still has to Diane's estate or have a court determine that Diane's estate has those mineral rights. That will keep a good chain of title. But how to go about doing that is something about which Diane's estate needs to consult a local attorney. The details of the various deeds involved, the divorce decree and property settlement, and what each estate has done so far all matter in sorting out the best way to proceed.

 

[zddoodah]

I'm helping with a probate

Helping whom? And how?

some mineral rights that the decedent owns but are not in her name. They are still in her ex-husband's name (deceased). She was granted the mineral rights in the divorce settlement agreement, but some of the rights were never transferred to her name.

Just to clarify, the proceedings to probate both Sam's and Diane's estates are/were happening in NM, which is also where the property over which Desmond had mineral rights is located. Right?

What was the date of the divorce decree? What were Sam's and Diane's dates of death? Was Did Diane assert a claim in Sam's probate? Is the probate of Sam's estate done, or is it still pending?

An additional portion of the rights were QC deeded to Diane by Sam's administrator during Sam's probate.

Why not all?

How does Diane's estate transfer the mineral rights that are in Sam's name to Diane's heirs?

The executor/administrator of Diane's estate will first have to acquire title in the mineral rights, and that will have to be done by obtaining a deed from the exec/admin of Sam's estate. Specifics will depend on the answers to the questions I asked.

Can Diane's estate do a QC deed to the heirs even though they are in Sam's name?

Sure, but that will have virtually no legal effect and likely would not satisfy the duties of the exec/admin of Diane's estate.

By the way, I'm assuming your questions relate only to the third portion of the mineral rights that were not previously transferred by Sam and by the exec/admin of Sam's estate.

 

[Phil Williamson]

The divorce, Sam's death, and the probate of Sam's estate was decades ago. No one has any idea why all the rights were not transferred to Diane back then. Even Sam's executor has passed away. The divorce settlement agreement was filed in the county where the rights exist. It says that Diane gets all the mineral rights as her share of the assets. This is all in NM. Sam and Diane lived in one county and the rights are in another.

Other than this situation with the rights in the previous owner's name, the estate is very simple with few assets. The executor is able to do everything else himself. He asked me if I had any idea about this situation, but I didn't. He's trying to figure out how complicated it will be to deal with these rights that are still in Sam's name. None of us are really sure about what needs to be done and how expensive it might be. I just figured I'd ask around to get an idea of what he's going to face. One concern is that the estate doesn't really have a lot of assets and might not be able to afford to get this straightened out. The rights are just a small fractional interest and may not have much value. (he's still investigating that as well).

 

[army judge]

The rights are just a small fractional interest and may not have much value.

Your assumptions are likely to be on point.

Mineral rights generally were scoffed up during the late 18th and throughout the 19th century by railroads, utility companies, in some situations governmental entities, wealthy land barons, and developers/builders.

 

[zddoodah]

The best thing that the executor of Diane's estate can do is consult with a local probate attorney. The attorney can advise the executor regarding the approximate cost. In the meantime, the executor can ascertain the value of the mineral rights to determine their approximate value. Once the value and cost are ascertained, the executor can make an informed decision.