Selling a parent's land in Texas with a power of attorney, or without one

Does a power of attorney let you sell your parent's land?

Yes, if it's the right kind and it grants the right powers. Texas has two documents with similar names. A medical power of attorney covers health care decisions only. A durable power of attorney covers property and money, and that's the one that can be used to sell land.

The Texas statutory form (Estates Code 752.051) lists powers your parent grants by initialing lines. Line (A) is "Real property transactions." Line (O) grants all the listed powers at once. If either is initialed, Estates Code 752.102 gives the agent authority to sell, convey, partition, lease and otherwise dispose of your parent's real estate, without the document having to describe the specific tract.

A power of attorney written by a lawyer on a different form can work too. Texas doesn't require the statutory form. What matters is whether it grants authority over real property.

What makes the document valid for a land sale

Under Estates Code 751.0021, a durable power of attorney has to:

• be in writing and signed by your parent, who must be an adult, or by another adult at your parent's direction and in their conscious presence;
• say that it isn't affected by your parent's later disability or incapacity, or that it takes effect on disability or incapacity; and
• be acknowledged before a notary or another officer who can take acknowledgments.

Two details trip families up.

Springing powers. Some powers of attorney take effect only when the parent becomes incapacitated. Unless the document defines that differently, it means a physician has certified in writing, after examining your parent, that they can't manage their financial affairs (Estates Code 751.00201). The title company can ask for that physician's statement before it accepts the document (751.203).

Gifts. An agent can make gifts, change beneficiaries or create survivorship rights only if the power of attorney expressly allows it (751.031). Selling the land to yourself or a relative below its value, or keeping part of the money, can amount to a gift, and an unauthorized one is a breach of your duties. If you want to buy the land yourself, talk to a Texas attorney before you do anything.

Recording the power of attorney

Texas requires a durable power of attorney used for a real estate transaction to be recorded with the county clerk in the county where the land is located. The deadline is the 30th day after the deed is filed for recording (Estates Code 751.151). The easiest way to meet it is to have the title company record the power of attorney at the same time as the deed.

Recording puts the document in the public land records, so anyone checking the title later can see why you signed for your parent.

Will the title company accept it?

A title company needs to be satisfied that you can sign before it insures the buyer. Texas law sets a short process for anyone asked to accept a durable power of attorney (Estates Code 751.201 to 751.206):

• Within 10 business days, they can ask for an agent's certification: your sworn statement that your parent is alive, the document hasn't been revoked, your parent was competent when they signed it, and no guardianship proceeding has started. They can also ask for a lawyer's opinion on a legal question, paid for by your parent.
• Once they receive it, they generally have 7 business days to accept.
• They can't insist on a different form of power of attorney for authority the document already grants.
• They can refuse for listed reasons, including a good-faith belief that the power of attorney isn't valid or that you don't have authority for this act.

Send a copy to the title company as soon as you have a buyer, or before. Problems found early can often be fixed, especially while your parent can still sign a new document.

Your duties as your parent's agent

Once you act under the power of attorney, you're a fiduciary to your parent (Estates Code 751.101). In plain terms:

• The sale money is your parent's. It goes into your parent's account, never yours.
• Tell your parent what you've done, in a timely way (751.102).
• Keep records of every action and decision (751.103). Your parent can demand a full accounting of what came in, what went out and what property you've handled (751.104).
• Protect their estate plan where you know it and doing so is in their best interest (751.122). If a will leaves this land to one person, selling it may change who ends up with what, so think it through and get advice.

Relatives and others with a real interest in your parent's welfare can ask a court to review an agent's conduct (751.251). Good records are your protection.

If there's no power of attorney

What happens next depends on whether your parent can still understand what they're signing.

Your parent still has capacity

Your parent can sign the contract and deed themselves, with your help. Or they can sign a durable power of attorney now naming you as agent. TexasLawHelp.org explains that the person signing must be an adult of sound mind, meaning they understand the document and what they're authorizing, and must sign in front of a notary. It also has the statutory form. If your parent's memory is slipping, have a lawyer supervise the signing, in case anyone questions it later.

Your parent can no longer manage their affairs

Without a valid power of attorney, the person who can sign a deed for an adult who lacks capacity is generally a court-appointed guardian of the estate. Getting there takes a court case:

• The court must find by clear and convincing evidence that your parent is incapacitated, and that alternatives to guardianship and available supports have been considered and aren't feasible (Estates Code 1101.101).
• Even after a guardian is appointed, a ward's property can't be sold without a court order (1158.001). The guardian applies for an order of sale showing why selling is necessary or advisable, for example because the land earns little or is only an undivided share (1158.251).
• Once the land is under contract, the guardian reports the sale to the court within 30 days. The court approves it only if the price is fair and the sale was properly made (1158.551 and 1158.556). The deed then refers to the approval order (1158.557).

It works, but it's slower and costs more than a power of attorney, and it happens in a public court file. That's the best reason to get a power of attorney signed while your parent is still able.

If your parent is married

Check how the land is owned. If it's the couple's homestead, neither spouse can sell it without the other joining, whether it's community or separate property (Family Code 5.001). If a court declares one spouse incapacitated, the other spouse gets power to manage and sell the community property as community administrator, without a guardianship of that property (Estates Code 1353.002). Separate property follows different rules, so get advice.

When your parent dies, the power of attorney ends

A durable power of attorney ends at the principal's death (Estates Code 751.131). From that moment you can't sign anything under it, even to finish a sale already under contract. The land passes to your parent's heirs or the people named in the will, and title has to be cleared through probate, an affidavit of heirship or a transfer on death deed. Our guide to selling inherited land in Texas walks through each route.

Planning ahead: transfer on death and Lady Bird deeds

If your parent is still well and wants the land to pass to family without probate, two deeds are worth asking a lawyer about. Neither sells the land. They decide who gets it at death.

• Transfer on death deed. Estates Code chapter 114 allows it. It names who receives the land at death, must be signed with the capacity needed to make a contract, and must be recorded before death. Your parent can still sell or mortgage the land while alive, and can revoke the deed. One catch: an agent can't create a transfer on death deed using a power of attorney (114.054).
• Enhanced life estate deed, or "Lady Bird deed." Your parent keeps control of the land for life, including the right to sell it, and names who gets it at death. The Texas State Law Library notes there's no official form, so a lawyer should draft it.

These deeds can affect creditor claims and Medicaid planning, so an elder law attorney should help your parent choose.

Next steps

1. Find the power of attorney and check that it covers real property.
2. Confirm it's durable. If it's springing, get the physician's statement.
3. Choose a title company and send them the document early.
4. Get an appraisal or a documented market value, so the price is easy to defend.
5. Keep the sale money in your parent's name and record every step.

Your parent's tax on the sale depends on their own basis in the land, which our guide to capital gains tax on land in Texas explains. When you're ready, you can list with an agent, sell it yourself, or work with a land company like ours. If you'd like to talk it through, tell us about your parent's land. We'll research it and agree on a price with you, and a Texas title company reviews the power of attorney and closes the sale.