The dissolution of a marriage frequently requires the division and disposition of real estate. Whenever that real estate is investment or business property, rather than solely a principal residence with no business or substantial amount of land, both parties and their advisors should give serious early attention to Section 1031 of the Internal Revenue Code. The stakes are high, and the window of opportunity is narrow.

A properly structured 1031 exchange gives both parties powerful options:

– Defer taxes interest-free, preserving capital that would otherwise be lost to immediate taxation.

– Use leverage to acquire more or more suitable real estate.

– Diversify into different property types aligned with each party’s post-divorce goals.

– Increase cash flow through income-producing replacement property.

– Reduce management burden by converting active investment property into passive income vehicles.

Preserve more wealth for future investment and potentially leaving a greater legacy to the heirs, an objective that parties on both sides of a marriage dissolution normally continue to share.

Consider a common scenario: one spouse receives, as part of an equitable distribution, a commercial building or ranch that neither spouse wants to manage. Without a 1031 exchange, that spouse faces an unappealing choice, manage an unsuitable asset or sell it and absorb a significant tax hit. A properly structured exchange resolves that dilemma, the spouse can exit the unwanted property and acquire replacement property suited to their goals, whether that’s a passive net-lease investment, a smaller rental property, or a diversified portfolio. That outcome benefits not only that spouse but the couple’s heirs as well.

A successful exchange depends on strict compliance with timing, ownership, and control-of-proceeds requirements.  These are not technicalities, they are absolute conditions.  Both parties, their attorneys, any mediators involved, and judges presiding over contested proceedings all need to understand that compliance with these requirements is not optional if the tax benefits are to be preserved.

Decisions made during divorce negotiations or court proceedings can inadvertently destroy an otherwise valid exchange. Common pitfalls include settlement agreements that transfer title prematurely, distributions that give a party constructive receipt of sale proceeds, and court orders entered without awareness of pending exchange deadlines. By the time these errors are recognized, it is often too late to correct them. What could have been a tax-free transaction becomes a fully taxable one that neither party intended.

In divorce cases involving investment or business real estate, a 1031 exchange can be a powerful wealth-preservation tool, but only if it is addressed before key decisions are made. Once a settlement agreement is signed, proceeds are distributed, or a court order is entered, the opportunity may be gone permanently.

The more civil the parties can be and the  earlier the issue is raised, the more options remain available to both parties, the marital estate overall, and the children.  Early coordination among the divorcing parties, their attorneys, tax advisors, and a qualified intermediary can mean the difference between preserving valuable tax benefits for the family and forfeiting them entirely through an avoidable oversight.

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Most of us have adjusted to balancing children, work and finding some time for ourselves.  But when we add caring for aging parents, it often becomes too much.  And usually it’s the “me” part that is sacrificed…until you hit burn out.

Here are some ways to leverage your time and resources so you can also take care of yourself.

Enlist Your Kids

Even the smallest child can spend charming one-on-one time with a grandparent.  If your parent lives with or near you, they can spend time together in person.  If your parent is not near you, they can Skype on the computer, use FaceTime or play multi-player online games.  Your children, no matter what their ages, will benefit from spending time with Grandma or Grandpa, they will see how you value and care for aging family members—and you will get some extra time to return phone calls, make dinner, or even catch a quick nap!

Ask About Options at Work

Check with your employer’s human resources department about resources that might be available to you. Depending on how long you expect to be caring for your parent, there may be a multitude of options available to you, including elder care research and referral services, flex time, even working from home options.  The Family and Medical Leave Act (FMLA) calls for eligible employees to receive 12 weeks of unpaid job-protected leave. (Private employers with less than 50 employees are exempt.)

Seek Assistance

There are legal and community resources that can help you make the best care and financial decisions for your parent.  A local Elder Care attorney can prepare the necessary legal documents and help you maximize your parent’s income, long-term care insurance and retirement savings, and qualify for VA or Medicaid benefits, if applicable.  He or she will also be familiar with various living communities in the area and in-home care agencies. You can also hire someone to review and verify or dispute insurance claims and medical billing.

Find Your “Me” Time

Stress is your biggest enemy and you have to find ways to reduce it.  Joining a caregiver group, in person or online, will let you share your questions and frustrations, and learn how other caregivers are coping.  Don’t be afraid to ask favors of friends and relatives, such as picking up your kids while you go to the doctor with your parent.  You could also learn to order in dinner every now and then without feeling guilty. Learn what you need to maintain your stamina, energy and positive outlook. That may include regular exercise (a yoga class, walk or run), a weekly outing with friends, or time to read or simply watch TV.

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A comprehensive estate plan often includes writing a Last Will and Testament to transfer your assets to your beneficiaries.  Once you’ve passed away, the executor of your Will shepherds the Will through the probate process.  However, you may have things you’d like to communicate to your loved ones and beneficiaries that you don’t want to include in the Will itself. Often, these are informal instructions that will help your executor carry out your wishes. It might also include such informal elements as opinions about your funeral, the values you’d like to be remembered for or a list of personal items designated for individuals.

Sometimes known as a letter of intent, a list of personal items designated to certain individuals is a document that provides specific information regarding your preferences as to who gets certain personal items, family heirlooms, sports memorabilia, jewelry, guns or a clock.  The letter of intent should clearly identify the individual and accurately describe the item you wish for them to have.  Labeling the item(s) helps as well. The Will contains a paragraph that specifically references this letter of intent or list so that personal items do not have to be made public record, but the executor knows who gets what item.

Another similar item is a letter of instruction on anything from key contacts, account information, family information, medical care, or your funeral wishes.  A letter of instruction isn’t legally binding in any way, unlike a Will.  Rather, it’s meant to be something of a crib sheet for the executor of your Will or your loved ones. You can use plain English to communicate anything you want regarding your affairs as a reference once you are no longer able to communicate this information personally.

Because there is no legal aspect to this document, you are free to also include messages to your family if you wish, and you can touch on matters that you may not be able to include in something like a Will or an advance directive.

What Should You Include in Your Letter of Instruction?

What you decide to include in your letter of instruction is completely up to you.  There’s no one piece of information that will qualify or disqualify your letter.  Your attorney should provide you with guidance in this matter and may even have a form.  That said, there are a handful of things that will make your executor’s life easier when she’s working to probate your estate. This information includes:

• A list of all your assets;

• The location of any assets that may not be readily accessible;
• All of your account information, including passwords, PIN numbers and account numbers, for any bank accounts or retirement accounts you have;
• Contact information for anyone who helps you with your finances, including attorneys, brokers, bankers and financial advisors;
• Informal directions about how you would like the executor to disperse some of your assets, typically heirlooms or other sentimental possessions;
• If you’d prefer people to make donations in lieu of flowers at your funeral, information about which charities you prefer;
• Where your executor can find your most recent tax returns, Social Security statements, birth certificate and other important documents;
• Similarly, where your executor can find any real estate titles/deeds or oil and gas leases, etc.;
• Your Social Security number;
• Any divorce and/or citizenship papers, or applications thereof;
• Contact information of any creditors (mortgage, car, etc.) and any insurance companies, particularly if you have a life insurance policy;
• If you have pets who will need a home, where you would like your executor to send them.

From there, you can include any messages or additional preferences that come to you. Some people choose to include a preference for burial or cremation. You might even mention which songs you’d like played at the funeral.

Letter of Instruction vs. Last Will

Although a letter of instruction and a Last Will discuss similar topics, they are distinct documents with several differences. First and foremost, a letter of instruction isn’t a legal document, while a Will has legal force. State law requires that your executor or administrator follow the terms of your Will, whereas no one is required to follow your letter of instruction. In order to prevent any potential conflict as to whether your letter of instruction is a testamentary document or not, you should let you estate planning attorney provide guidance.

Because of this distinction, a letter of instruction can be much more flexible. You’re essentially just writing a message to an executor or a loved one with helpful information. This is why you can choose to include anything you want.

A letter of instruction can’t take the place of a Last Will.  If you pass away without a Will, a court-appointed administrator will distribute your possessions according to state and county law rather than your letter.

While it can’t serve as a substitute for a Last Will, a letter of instruction can be extremely helpful to your loved ones.  You can spell your wishes out in simple terms, and you can leave them a final message without the formality that comes with a legal document.

It is very important to have an estate planning attorney help draft your estate planning documents, and provide guidance with letters of instruction.  It is money well spent to avoid expensive conflicts later.

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In short, the GUIDE program is designed to enhance the quality of life for individuals living with dementia and to support their caregivers. As I stated above, for anyone who has dealt with a loved one suffering from dementia, this is a welcome step in the right direction.  This program provides a range of services aimed at improving care and reducing the need for hospitalizations.

The GUIDE program includes several essential services:

–  24-Hour Helpline: Caregivers can access support at any time, ensuring they have guidance when needed.

–  Care Navigators: Families are assigned navigators to help them find local services and resources.

–  Financial Assistance: Up to $2,500 annually for respite care, which can cover in-home caregivers or adult day care.

The primary objectives of the GUIDE program are:

1) Improve the quality of life for individuals with dementia.

2) Reduce unnecessary hospital visits and emergency department use.

3) Support family caregivers in managing their responsibilities.

The program aims to alleviate the strain on caregivers by providing them with resources and support. This holistic approach not only benefits the individuals with dementia but also enhances the overall caregiving experience, allowing families to maintain a better quality of life.

I believe the 8 scariest words in the English language are “I am here from the government to help.” Additionally, I am hesitant to indorse a test proram, but I believe the GUIDE program could represent an  advancement in dementia care, focusing on comprehensive support for both patients and their caregivers.  By addressing the complex needs of those affected by dementia, the program seeks to create a more sustainable and effective care model.

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Planning for the future can be overwhelming, but creating a care plan is one place to start for a family dealing with a member who has a disability.  Your loved one might qualify for local or federal benefits and you might be able to save for their needs in a tax-advantaged ABLE account.  For long-term planning, you might want to consider a trust for an individual with special needs.  When you have a family member with special needs, you think about so many things all at once that future planning often gets shunted aside in favor of getting through today. But most of the challenges you face are not temporary. So when you are ready, you might consider thinking through the whole life cycle of help that is ahead of you.

A good test for when you need to do advanced financial planning for an individual with special needs is if you anticipate them needing assistance caring for themselves through adulthood.  When you determine the severity of the need, you can then figure out what level of local and federal benefits are involved.

Individuals lose eligibility to certain government benefits if they have more than $2,000 in countable resources ($3,000, if married), according to the Social Security Administration.  But by saving in an ABLE account, some families can help shield contributions from that countable-resources limit. What’s more, after-tax contributions to these accounts can grow tax-deferred, and if withdrawals are used for qualified disability expenses, which includes but is not limited to rent, food, transportation, education and employment training, health care, and personal support services, any earnings on such distributions will be federal income tax-free. These accounts don’t make sense for everyone, so consult with a financial advisor to see if it is a good strategy for you.

It’s important to know that ABLE accounts do have an annual contribution limit.  In 2025, the limit is $19,000 from all contributors in aggregate.  However, the ABLE to Work provision of the Tax Cuts and Jobs Act of 2017 allows ABLE account owners who can work to save an additional amount equal to the lesser of their compensation for the taxable year, or an amount equal to the federal poverty level, which is $15,650 per single-person household in 2025.  Additionally, if the total assets in the ABLE account exceed $100,000, Social Security for the person with disabilities may be suspended.

It can be hard for families to look far down the road and think about what happens when primary caregivers are no longer able to care for their loved one, but setting up for the future can prevent mistakes later on that could negatively impact benefits and cause conflict.

For instance, it may not be a good idea to list a person with special needs as the beneficiary on a parent’s financial and retirement accounts. If the assets go to the child, that could interfere with their ability to receive Social Security income for disability benefits.

There are several types of trusts that many families establish for the benefit of individuals with special needs. One of the most common is a third-party special needs trust, which is created by someone who wants to leave money for a dependent with special needs but doesn’t want that person to lose out on government benefits. The trust can be established by a Will or created during the benefactor’s lifetime. The creators of the trust appoint a trustee who has discretion over when and how funds are distributed. The trustee cannot distribute money directly to the dependent, but they can pay for certain items and services not covered by the dependent’s monthly Supplemental Security Income (SSI) for disability. Upon the death of the dependent, whatever assets are left in the trust can be distributed according to the creator’s wishes as specified in the terms of the trust.  A third-party special needs trust can be used in conjunction with an ABLE account, so families needn’t choose one or the other.

All estate plans need to evolve over time to keep pace with changes in people’s lives and financial situations. When your family is dealing with an individual who has special needs or disabilities, it is even more important to include them in your plans.  To make sure your plan stays current, review it every 3 to 5 years, or whenever your life or your family changes in a major way. That way you can be confident that your loved ones will be cared for when you’re no longer here to look after them financially.

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Senate Bill 17

SB 17 is one of several measures introduced this session aimed at restricting certain types of foreign ownership of land in Texas. In its most recent version, which passed the House earlier this month, SB 17 would add a new Subchapter H to Chapter 5 of the Texas Property Code, titled “Purchase or Acquisition of Real Property by Certain Foreign Individuals or Entities.” The bill initially passed the Senate in March and has since been amended by the House. Notably, the House version expands the scope of the bill by granting the Governor authority to designate additional countries and transnational criminal organizations whose nationals or entities would be prohibited from acquiring real property in Texas.

Senate Bill 647

SB 647 is one of two bills introduced this session aimed at combating deed fraud. It proposes amendments to Section 51.901 of the Texas Government Code to enhance protections against the fraudulent filing of property-related documents. Specifically, the bill authorizes county clerks to send written notice to the last known property owner when a recorded instrument purports to create a lien or transfer an interest in real property—particularly when the owner’ s address differs from that of the grantor, obligor, or debtor named in the document. Additionally, SB 647 empowers clerks, upon consultation with the district or county attorney, to refuse to file or record a document if there is probable cause to believe it is fraudulent or if the filer fails to provide required supporting documentation as specified in the statute. The bill passed the Senate and was recently reported favorably out of a House committee.

Senate Bill 648

SB 648 is the second of two bills this session aimed at addressing deed fraud. The bill introduces enhanced recording requirements for certain real property instruments, particularly when such documents are filed by individuals or entities other than attorneys, title agents, title companies, or escrow companies that provide closing, settlement, or comparable transaction services. Under SB 648, if an instrument is submitted for recording by someone outside of these professional categories, the following additional requirements must be met: the instrument must be signed by both the grantor and the grantee in the presence of two subscribing witnesses, and all signatures—including those of the witnesses—must be acknowledged. The bill also imposes stricter requirements for filing affidavits of heirship. Specifically, if the affidavit is filed by someone other than an attorney or title-related professional, it must be signed by the affiant and acknowledged by each person named as an heir, again in the presence of two subscribing witnesses. SB 648 would take effect immediately upon receiving a two-thirds vote in both chambers. It has already met that threshold in the Senate and is currently under consideration in the House.

Senate Bill 2550

SB 2550 addresses five statutes that require sellers of real property to provide specific notices to buyers pertaining to the surface estate, which do not extend to the mineral estate or associated water rights. While current law exempts transactions involving the sale of mineral rights from these notice requirements, it does not provide a similar exemption for the sale of groundwater or surface water rights. SB 2550 corrects this inconsistency by extending the exemption to include transactions involving only groundwater or surface water rights. The bill has passed both chambers of the Legislature and was sent to the Governor for signature on May 13.

Once the 89^th Regular Session of the Texas Legislature ends, a comprehensive report will be prepared for all the changes made in this session.  To view the full text of these and other bills, please visit the Texas Legislature Online (TLO) website.

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To start, let’s basic difference between a Will and a Trust in simple terms, so you can get a basic idea of what’s out there.

Wills executed in Texas can be relatively easy to probate. If the will contains proper language appointing an “independent executor” and contains “self-proving affidavits” from 2 witnesses over the age of 14, then your estate should be in an out of probate in a jiffy. If you do not have a will, or it does not appoint an independent executor, or is not self-proving, in that event THE LAWYERS WILL GET ALL THE MONEY.

An independent executor need only make application to the court for admission of the Will to probate, and do an inventory and appraisement. If no debts or taxes are due, the estate may then be distributed to the devisees (devisee is a fancy lawyer word for “heir”). Technically heirs and devisees are different, but you will have to pay me to explain all that.   Another term is beneficiary (another fancy lawyer word for who benefits from the Will).  The benefit to not having debt is that only the beneficiaries see the inventory.

Thus, an estate driven by a Will does not require a great deal of management, allows the individual to maintain ownership of assets until death, can be simple, private and relatively inexpensive.

Generally, a trust is a legal instrument that transfers  title to designated property from the owner, called the settlor, donor or grantor (settlor), to a trustee, who holds the property for the beneficiaries of the trust.  The settlor can also serve as the trustee, thereby enhancing control over the trust during the life of the settlor.  In such a case, a successor trustee is usually named in case the grantor dies or is incapacitated.  Depending on the size or complexity of

the trust, the trustee, or cotrustee, might

be an institution, so as to bring more expertise to the position.

When utilizing a trust for your estate plan there are several considerations.  Once created, all property belonging to the settlor must be transferred into the trust.  This includes real estate, financial accounts, vehicles and any other property.  Over time, as property is sold and/or acquired, the trust must be utilized and the property placed in the trust name.

If you are seeking tax relief from the trust, then you will not be able to act as the trustee.  Additionally, you may not be able to amend the trust.  Many folks are not comfortable giving up control of their assets.

Another consideration are the homestead, disability or over 65 exemptions effecting your property.  In order to maintain these exemptions, the trust will need to contain specific language.  It may not be possible to maintain all these exemptions.

Trust are popular in many states because of different property and tax law.  However, what works in one state, may not be the best in your state (Texas).

There are many different types of trust and one might be appropriate in your plan, but there is lots of misconceptions about trust.

If you considering an estate plan, you should sit down with an attorney experienced in estate planning to assist you in making sure which estate plan is correct for your needs.  We have the experience and would be glad to help you in this regard.

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The law gives you the freedom to decide how and to whom your assets are distributed when you die by making a Will.  But if you die without a Will, your assets will be distributed according to a statutory formula that doesn’t take into account your wishes and unique circumstances.

Below is a summary of the way the assets of those who die without a Will in Texas are distributed.  Please understand this is not an exhaustive list.  It does not take into consideration claims of common law marriage, birth of a child after a Will, handwritten documents validity as testamentary instruments and a host of other issues.

Distribution For Single People With No Children

If a you are single and die without a Will in Texas, the Texas Probate Code dictates that your assets will be distributed as follows:

      Your estate will pass equally to your parents, if both are living.  If only one parent is alive, and you don’t have any brothers or sisters, then your entire estate will pass to your surviving parent.

However, if you do have siblings, or descendants of siblings (nieces and nephews), then your surviving parent would receive only half of the estate, and the remaining one half would be divided among your siblings or their descendants.

      All of your estate would pass to your siblings or their descendants if you have no surviving parents.

If you have no surviving descendants, parents, siblings, or descendants of siblings, then the estate is divided into two halves, with one half passing to relatives on your mother’s side of the family, and the other one half passing to relatives on your father’s side.

      If one side of the family has completely died out, the entire estate would pass to the surviving side of the family.

      On rare occasions, when an unmarried person dies without any surviving heir, his estate will pass to the State of Texas.

      Perhaps you have a close friend who you would have wanted to share in your estate. That would not be possible without a Will.

Distribution for Those Who Die Unmarried with Children

If you are single and have children, then all your property will pass to your descendants. If your descendants are of the same degree of relationship, (meaning, for example, that all are your children or all are your grandchildren), then the assets will be divided equally between them.

However, if your descendants are of different degrees of relationship, (meaning some of your children predecease you, leaving children or grandchildren of their own), then the younger generation would only be entitled only to the share the older generation would have received had he or she survived.  Meaning that if you have two siblings and one predeceases you, the children of that deceased sibling divide that share.

Distribution for Those Who Die While Married

Many people may assume that if they are married and die without a Will in Texas, their surviving spouse will inherit their entire estate. This is not always the case. How their property is divided depends on whether it is characterized as community property or separate property.

Community Property

All property acquired during a marriage is presumed to be community property. Under Texas laws, if you are married and are survived by a spouse and children, then:

Your surviving spouse will inherit all your community property if all your children are also the children of your surviving spouse;

Otherwise, all your one-half interest in the community estate will pass to your children, with your spouse keeping only his or her one-half interest.

If you do not have any children, then your surviving spouse will inherit all of your community property.

Separate Property

If your property is characterized as separate property, the distribution scheme is different:

If you are survived a spouse and children, your surviving spouse is entitled to one third of your separate personal property and only a life estate (the right to use the property until his or her death) in one-third of your separate real property. The rest would be inherited outright by the children of the deceased spouse.

If you are married but have no children or other descendants, your surviving spouse would be entitled to all the separate personal property. But if you have surviving parents and siblings, the surviving spouse would only be entitled to one-half of the separate realproperty with the other half passing to the parents, siblings or descendants of siblings in a manner set forth by the statutes.

If you want the freedom to decide how and to whom your property will be distributed when you die, you need a well written Will.   While the internet promises self help documents, these homemade documents usually add more issues than they resolve.   Additionally, the process for proving who your family (heirs) are without a Will is time consuming, difficult and generally much more expensive than if you had a Will.  You should therefore seek the assistance of an attorney who is well versed in estate planning to help you create these documents and give you peace of mind.  © 2025

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What does the term “incapacitated” mean?

An adult is incapacitated if , because of a physical or mental condition, the person is substantially unable to provide food, clothing, or shelter for himself or herself, to care for his or her financial affairs.  Merely advanced age or hospitalization does not automatically mean a person is incapacitated.

How can I provide in advance for the management of my financial affairs should I become incapacitated?

As you grow older and the possibility of becoming incapacitated increases, it is wise to consider choosing a trusted friend or family member who will have the legal authority to manage your financial affairs without incurring the expense of a guardianship.  This is done by executing a Durable Power of Attorney.  A Durable Power of Attorney is a legal document in which a person (called a “principal”) appoints another person (called an “attorney-in-fact”) to manage the principal’s financial affairs.  A Power of Attorney will automatically terminate upon the principal’s incapacity under Texas Law unless it is durable, that is, unless it contains language to the effect that “This power of attorney is not affected by the subsequent disability or incapacity of the principal.”

Who will make medical decisions for me should I become incapacitated?

By executing a Power of Attorney for Health Care, you can appoint one or more persons whose judgment you trust to make your medical decisions should you be unable to do so yourself.  You can give your agent complete authority to make medical decisions, or you can limit his or her authority.  Without a  Power of Attorney for Health Care, an adult surrogate may not be able to consent to medical treatment on your behalf if you become incapacitated.  The adult surrogate, in the following order of priority, is as follows: (1) your spouse, (2) an adult child, (3) your parents, (4)  an individual identified to act on your behalf before incapacity, (5) or your nearest living relative.

What is a living will?

A living will is a common name for a document entitled “Directive to Physicians.” A Directive to Physicians allows you to direct that life sustaining procedures, such as use of a respirator, be withheld or withdrawn if two doctors certify in writing that you have an incurable condition and that death is imminent.

What is the difference between an  Power of Attorney for Health Care and a Directive to Physicians?

A Directive to Physicians has very limited application; it only applies to one medical treatment decision, the decision to withhold or withdraw life support when death is imminent.  A Power of Attorney for Health Care covers all medical treatment decisions.

Pursuing for your incapacity can be a difficult process, emotionally and legally.  It is important to give your family peace of mind that they know who has authority and what actions to take ahead of time.  An attorney experienced in estate planning can assist you in determining what option(s) is/are appropriate for your particular situation.  There are too many details to address in this article, but if you have further questions or are planning for your future, you should consult an attorney.

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While the monetary compensation is certainly an important factor for a landowner to consider, the nonmonetary  terms of the easement may be more important and more valuable.  Therefore, it is imperative to document any statement or promise made by the company seeking the pipeline into a written agreement.

Each property is unique, and the following considerations may not apply the same way to different properties because of their specific use and characteristics.  While this list is based on a pipeline easement, these terms may also be helpful in negotiating other easements, such as those for electric or transmission lines   (Entergy Reedy Creek project), water, wastewater, drainage, or related infrastructure easements.

I will start with a money saving tip.  Because most attorneys bill by the hour, a client can save considerable fees by doing as much legwork as possible before going to the attorney’s office.  For example, a landowner could collect necessary documents such as the legal description or plat of the property, saving the attorney the time of locating that information.  Another time saver would be for the landowner to prepare a draft of the easement agreement or a list of terms they desire.  This will save time when sitting down with the attorney.

Check on Eminent Domain Authority:

Often the company seeking the pipeline will tell the landowner they have the ability to obtain what they want through eminent domain.  However, you should check to see if the company is validly registered with the State Comproller’s office as having eminent domain power.  Ask the company representative for a copy of the statute that grants them eminent domain power and evidence supporting their claim as a common carrier.  If it is a transmission line, obtain a copy of the company’s Certificate of Convenience and Necessity from the Public Utility Commission.  This will explain what condemnation power the company has and may provide additional information about the proposed project.

Determine Compensation:

Generally, payment is based per foot, per acre or per rod (a rod is 16.5 feet) of the pipeline.  Consider seeking payment per square foot rather than per foot or per rod  to be adequately compensated for the entire area the company will use.  It is common for the company to seek a temporary work area, as well, and you should seek compensation for this temporary work area.

It is important to know that Texas courts recognize remainder damages for the decreased value of the remainder of the property outside of the easement strip.  For instance, if a pipeline splits a 10 acre tract, the acreage remaining outside the easement will likely be worth less per acre than if the 10 acres were sold as a whole.

You should also discuss the payment’s tax implications with your CPA or financial advisor.  How the payment is described or structured will make a difference.

The following list of key points may be helpful:

• Seek a Specific Easement
• Seek a Nonexclusive Easement
• Limit Easement to One pipeline
• Determine Pipeline Diameter
• Require a Specific Pipeline Depth
• Request Payment for Damages
• Have a Timber Management Company or Agricultural Consultant evaluate the property
• Have Property Appraised
• Specify Fencing Requirements
• Include Repairs to existing roads
• Determine Maintenance requirements
• Define when the easement will terminate
• State Requirements for Removing Pipe and Facilities
• State Remedies for Violating Agreement
• Include Liability and Indemnification Provisions
• List Landowner as “Additional Insured”
• Do Not be responsible for Warranty of Title
• Limit Terms of Transferability
• Request a Most-Favored-Nations Clause
• Use Choice of Law provision
• Include a Forum Clause

Finally, a licensed attorney familiar with easement negotiation issues should review all pipeline easement agreements BEFORE signing.  Although hiring an attorney who specializes in representing landowners in these type of transactions may be an additional cost, it could save money in the long run by preventing a dispute from arising due to an unclear or inadequate easement agreement.  Additionally, the fee arrangement with attorneys in these matters is usually a contingency fee agreement.  This means the attorney is paid based on the increased amount of compensation they produce for the landowner who’s property is being taken.  So, no cost up front.

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